\ 


V 


OPINION 


OF 


Cf|t  Chtuil  Court  of  lf|e  lll]itc[l 


FOR  THE 


NORTHERN  DISTRICT  OF  CALIFORNIA, 

IN  THE 

Matter  of  DAVID  NEAGLE 


UPON  HABEAS  CORPUS. 


Delivered  at  San  Francisco,  September  16,  1889, 

BY 


HON.  LORENZO  SAWYER , 


U.  S.  Circuit  Judge. 


lit  tf\e  Circuit  Court 

OF  THE 

UNITED  STATES. 

Ninth  Judicial  Circuit, 

NORTHERN  DISTRICT  OF  CALIFORNIA. 


In  the  Matter  op  j 

DAVID  NEAGLE  No.  10,469. 

On  Habeas  Corpus.  I 


1.  Under  the  provisions  of  Sections  751,  752  and  753  of  the 
Revised  Statutes,  the  Courts  of  the  United  States  and  their 
Judges  have  jurisdiction  upon  a  writ  of  habeas  corpus,  to  in¬ 
quire  into  the  cause  of  the  imprisonment  of  the  petitioner,  and 
if,  upon  such  inquii'3%  he  is  found  to  be  ‘‘  in  custody  for  an 
act  done  or  omitted  in  pursuance  of  a  law  of  the  United  States,” 
he  is  entitled  to  be  discharged,  no  matter  from  whom  or  under 
what  authority  the  process  under  which  he  is  held  may  have 
issued — the  Constitution  and  laws  of  the  United  States  made  in 
pursuance  thereof  being  the  supreme  law  of  the  laud. 

2.  In  the  exercise  of  this  jurisdiction,  there  is  no  conflict  of 
authority  between  the  State  and  the  United  States,  the  laws  of  the 
United  States  being  the  ‘‘Supreme  law  of  the  land,”  the  authority  of 
the  State,  in  such  cases,  is  subordinate,  and  that  of  the  United  States, 
paramount. 

3.  A  State  law  which  contravenes  a  valid  law  of  the  United  States 
is  void.  In  legal  contemplation,  there  can  no  more  be  two  valid  con¬ 
flicting  laws,  operating  upon  the  same  subject-matter,  at  the  same 


2 


time,  than  in  physics,  two  bodies  can  occupy  the  same  space  at  the 
same  time. 

4.  The  United  States  is  a  government,  with  authority  extending 
over  the  whole  territory  of  the  Union,  acting  upon  the  States,  and  the 
people  of  the  States.  While  limited  in  the  number  of  its  powers,  it 
is,  so  far  as  its  sovereignty  extends,  supreme.  No  State  can  exclude 
it  from  exercising  those  powers,  obstruct  its  authorized  officers, 
against  its  will,  or  withhold  from  it  the  cognizance  of  any  subject 
which  the  constitution  has  committed  to  it. 

5.  The  Constitution  and  laws  of  the  United  States  as  to  those 
matters  wherein  they  are  supreme,  extend  over  every  foot  of  the 
territories  of  the  United  States,  and  the  jurisdiction  of  its  Courts  to 
enforce  rights  derived  thereunder,  is  as  extensive  as  the  territory  to 
which  they  are  applicable. 

6.  The  Natioual  Government  has  power  to  command  obedience  to 
its  laws,  to  preserve  order,  and  to  keep  the  peace,  in  matters  affecting 
National  interests,  and  no  person  or  power  in  the  land  has  a  right  to 
resist,  or  question  its  authority,  so  long  as  it  keeps  within  the  bounds 
of  its  jurisdiction. 

7.  It  is  within  the  power  of  the  Government  of  the  United  States 
to  protect  all  the  agencies  and  instrumentalities  necessary  to  accom¬ 
plish  the  objects  and  purpose  of  that  Government.  It  is  therefore 
empowered  to  protect  the  lives  of  the  Judges  of  its  Courts  from  assault 
and  assassination  on  account  of  their  judicial  decisions  by  desperate, 
dissapointed  litigants,  not  only  while  actually  holding  Court,  but 
while  such  Judges  are  travelling  through  their  Circuits  for  the  pur¬ 
pose  of  holding  Courts  at  the  different  places  therein  appointed  by  law 
for  that  purpose. 

8.  An  assault  upon  or  an  assassination  of  a  Judge  of  the  United 
States  Court  while  engaged  in  any  matter  pertaining  to  his  official 
duties  on  account  or  by  reason  of  his  judicial  decisions  or  action  in 
performing  his  official  duties,  is  a  breach  of  the  peace,  affecting  the 
authority  and  interests  of  the  United  States,  and  withiu  the  juris¬ 
diction  and  power  of  the  United  States  Marshal  or  his  deputies  to 
prevent,  as  a  peace  officer  of  the  national  government. 

9.  By  Section  788  R.  S.,  and  the  several  provisions  of  the  Statutes 
of  California  prescribing  the  duties  of  Sheriffs  by  that  section  made 
applicable  to  Marshals,  the  United  States  Marshal  is  made  a  peace 
officer,  and  as  such  he  is  authorized  to  preserve  the  peace  so  far  as  a 
breach  of  the  peace  affects  the  authority  of  the  United  States  and 
obstructs  the  operations  of  the  government  and  its  various  depart¬ 
ments.  The  Courts  of  the  United  States  must  be  enabled  fully  to 


3 


perform  all  the  functions  imposed  upon  them  by  the  Constitution  and 
laws  without  hindrance  or  obstruction,  and  they  have  the  inherent 
power  to  protect  themselves  by  and  through  their  executive  officers 
under  the  direction  and  supervision  of  the  Attorney-General  and  the 
President  against  obstruction  aud  hindrance  in  the  performance  of 
their  judicial  duties. 

10.  Where  a  Deputy  United  States  Marshal,  acting  under  instruc 
tions  from  his  superior  officers— the  United  States  Marshal  and  the 
Attorney-General — in  protecting  the  life  and  person  of  a  Justice  of  the 
Supreme  Court  of  the  United  States  from  a  murderous  assault  made 
on  account  of  his  judicial  decisions,  at  the  hands  of  a  dissatisfied 
litigant,  finds  it  necessary  to  take  the  life  of  the  assailant  and  is 
arrested  by  the  State  authorities  and  held  upon  a  charge  of  murder 
for  such  act,  the  United  States  Circuit  Court  may  upon  habeas  corpus 
discharge  such  United  States  officer  from  the  custody  of  the  State 
authorities,  upon  it  being  shown  that  the  homicide  was  necessary,  or 
that  it  was  reasonably  apparent  to  the  mind  of  the  Deouty  Marshal, 
at  the  time  and  under  the  circumstances  surrounding  him,  that  the 
killing  was  necessary  in  order  to  protect  aud  defend  the  Justice  from 
great  bodily  injury,  or  to  save  his  life. 

11.  The  homicide  in  such  case,  if  an  offense  at  all,  is  an  offense 
under  the  laws  of  the  State,  and  only  the  State  can  deal  with  it 
in  that  aspect.  It  is  not  claimed  to  be  a  crime  punishable  under  the 
law's  of  the  United  States.  But  the  homicide,  when  necessarily  done 
by  a  Deputy  Marshal  in  the  performance  of  his  duty  in  protecting  the 
life  and  person  of  a  Justice  of  the  United  States  Supreme  Court  from 
assault  aud  violence  because  of  his  judicial  decisions,  is  an  “  act  done 
in  pursuance  of  a  law  of  the  United  States,”  aud  is  not  and  cannot, 
therefore,  be  an  offense  against  the  laws  of  the  State,  no  matter  what 
the  statute  of  the  State  may  be — the  laws  of  the  United  States  beiug 
the  supreme  law  of  the  land. 

12.  It  is  the  exclusive  province  of  the  United  States  Courts  to 
ultimately,  and  conclusively  determine  any  question  of  right,  civil  or 
criminal,  arising  under  the  laws  of  the  United  States.  It  is  therefore, 
the  prerogative  of  the  National  Courts  to  construe  the  National 
Statutes  aud  determine  upon  habeas  corpus  whether  a  homicide  for 
which  the  petitioner  is  charged  with  murder  by  the  State  authorities 
was  the  result  of  an  “  act  done  in  pursuance  of  a  law  of  the  United 
States,”  and  when  that  question  has  been  determined  in  the  affirma¬ 
tive,  the  prisoner  will  be  discharged,  and  the  State  has  nothing  more 
to  do  with  the  matter. 

13.  All  the  law  of  the  United  States  is  not  specifically  expressed  in 
statutory  enactments.  Many  powers  are  necessarily  inherent  in  the 


4 


v. irions  departments  of  the  Government,  without  which  the  Govern¬ 
ment  could  not  perform  functions  necessary  to  its  existence.  The 
exercise  of  such  powers,  is,  nevertheless,  in  pursuance  of  the  laws  of 
the  United  States. 

14.  When  statutes  confer  powers,  impose  duties,  and  provide  for 
the  accomplishment  of  various  objects  they  are,  necessarily,  couched 
in  general  terms,  but  they  carry  with  them  by  implication,  all  the 
powers,  duties  and  exemptions,  necessary  to  accomplish  the  objects 
thereby  sought  to  be  attaiued. 

15.  The  acts  of  the  heads  of  departments  of  tli6  United  States 
Government  in  the  line  of  their  duties,  are  in  contemplation  of  law, 
the  acts  of  the  President  himself. 

16.  A  party  resisting  a  murderous  assault,  where  several  lives  are 
in  danger,  being  in  the  best  position  to  judge  as  to  the  dangers  and 
requirements  of  the  occasion,  is  the  one  to  determine  when  the 
proper  moment  has  arrived,  in  self-defense,  to  slay  his  assailant,  in 
order  to  be  justified  by  the  law;  and  if  he  acts  in  good  faith,  with 
reasonable  judgment  and  discretion,  the  law  will  justify  him,  even 
though  he  errs.  Where  several  lives  are  in  danger  from  the  assault  of 
a  powerful,  infuriated,  desperate  man,  common  prudence  would 
dictate  that  the  party  assailed  should  fire  a  second  or  two,  too  soon, 
rather  than  the  fraction  of  a  second  too  late. 

Before  Sawyer,  Circuit  Judge,  and  Sabin,  Dist.  Judge. 

STATEMENT  OF  FACTS. 

This  is  au  application  for  the  discharge  of  David 
Neagle  upon  a  writ  of  habeas  corpus.  It  arises  out  of 
the  following  facts: 

On  the  3d  of  September,  188S,  certain  cases  were 
pending  in  the  Circuit  Court  of  the  United  States  for 
the  Northern  District  of  California,  between  Frederick 
W.  Sharon,  as  executor,  vs.  David  S.  Terry  and  Sarah 
Althea  Terry,  his  wife,  and  between  Francis  G.  New- 
lands,  as  trustee,  and  others  against  the  same  parties, 
on  demurrers  to  bills  to  revive  and  carry  into  execu¬ 
tion  the  final  decree  of  the  court  in  the  suit  of  William 
Sharon  vs.  Sarah  Althea  Hill,  and  were  decided  on 
that  day.  That  suit  was  brought  to  have  an  alleged 


5 


marriage  contract  between  the  parties  adjudged  to  be 
a  forgery,  and  obtain  its  surrender  and  cancellation. 
The  decree  rendered  adjudged  the  alleged  marriage 
contract  to  be  a  forgery,  and  ordered  it  to  be  sur¬ 
rendered  and  canceled.  The  decree  was  rendered 
after  the  death  of  William  Sharon,  and  was  therefore 
entered  as  of  the  day  when  the  case  was  submitted  to 
the  court.  By  reason  of  the  death  of  Sharon  it  was 
necessary,  in  order  to  execute  the  decree,  that  the  suit 
should  be  revived.  Two  bills  were  filed,  one  by  the 
executor  of  the  estate  of  Sharon,  and  the  other  a  bill 
of  revivor  ;md  supplemental  by  Newlands  as  trustee 
for  that  purpose. 

In  deciding  the  cases,  the  Court  gave  an  elaborate 
opinion  upon  the  questions  involved,  and  whilst  it  was 
being  read,  certain  disorderly  proceedings  took  place 
for  which  the  defendants,  David  S.  Terry  and  his  wife, 
were  adjudged  guilty  of  contempt  and  ordered  to  be 
imprisoned.  The  following  is  an  accurate  statement 
of  those  proceedings,  slightly  condensed  from  the 
opinion  of  the  Court  delivered  on  the  subsequent  ap¬ 
plication  of  David  S.  Terry  to  have  the  order  of  com¬ 
mitment  revoked.  For  the  whole  proceeding,  see  In 
re  Terry,  36  Fed.  Rep.,  419. 

Shortly  before  the  court  opened,  the  defendants  came 
into  the  com’troom,  and  took  their  seats  within  the  bar 
at  the  table  next  to  the  clerk’s  desk,  and  almost  imme¬ 
diately  in  front  of  the  Judges,  the  defendant,  David 
S.  Terry,  being  at  the  time  armed  with  a  bowie-knife 
concealed  on  his  person,  and  the  defendant,  Sarah  Al¬ 
thea,  his  wife,  carrying  in  her  hand  a  small  satchel 
which  contained  a  revolver  of  six  chambers,  five  of 
which  were  loaded.  The  court  at  the  time  was  held  by 
the  Justice  of  the  Supreme  Court  of  the  United  States 
allotted  to  this  circuit,  who  was  presiding,  the  United 
States  Circuit  Judge  of  this  circuit,  and  the  United 


6 


States  District  Judge  of  the  District  of  Nevada,  called 
to  this  district  to  assist  in  holding  the  Circuit  Court. 
Almost  immediately  after  the  opening  of  the  court,  the 
Presiding  Justice  commenced  reading  its  opinion  in 
the  cases  mentioned,  but  had  not  read  more  than  one- 
fourth  of  it  when  the  defendant,  Sarah  Althea  Terry, 
arose  from  her  seat  and  asked  him,  in  an  excited  man¬ 
ner,  whether  he  was  going  to  order  her  to  give  up  the 
marriage  contract  to  be  canceled. 

The  Presiding  Justice  replied,  “Be  seated,  madam.” 
She  repeated  the  question,  and  was  again  told  to  be 
seated.  She  then  cried  out,  in  a  violent  manner,  that 
the  Justice  had  been  bought,  and  wanted  to  know  the 
price  he  held  himself  at;  that  he  had  got  Newland’s 
money  for  his  decision,  and  everybody  knew  it,  or 
wrords  to  that  effect.  It  is  impossible  to  give  her  exact 
language.  The  Judges  and  parties  present  differed  as 
to  the  precise  words  used,  but  all  concurred  as  to  their 
being  of  an  exceedingly  vituperative  and  insulting 
character. 

The  Presiding  Justice  then  directed  the  Marshal  to 
remove  her  from  the  court-room.  She  immediately  ex¬ 
claimed  that  she  would  not  go  from  the  room,  and  that 
no  one  could  take  her  from  it,  or  words  to  that  effect. 
The  Marshal  thereupon  proceeded  towards  her  to  carry 
out  the  order  for  her  removal  and  compel  her  to  leave, 
wdieu  the  defendant  David  S.  Terry  rose  from  his  seat, 
evidently  under  great  excitement,  exclaiming,  among 
other  things,  that  “No  living  man  shall  touch  my 
wife,”  or  words  of  that  import,  and  dealt  the  Marshal 
a  violent  blow  in  his  face.  He  then  unbuttoned  his 
coat  and  thrust  his  hand  under  his  vest,  where  his 
bowie-knife  was  kept,  apparently  for  the  purpose  of 
drawing  it,  when  he  was  seized  by  persons  present,  his 
hands  held  from  drawing  his  weapon,  and  he  himself 
forced  down  on  his  back.  The  Marshal  then  removed 


Mrs.  Terry  from  tlie  court-room.  Soon  afterward  Mr. 
Terry  was  allowed  to  rise,  and  was  accompanied  by 
officers  to  the  door  leading  to  the  corridor  on  which 
was  the  Marshal’s  office.  As  lie  was  about  leaving  the 
room,  or  immediately  after  stepping  out  of  it,  he  suc¬ 
ceeded  in  drawing  his  knife,  when  his  arms  were  seized 
by  a  Deputy  Marshal  and  others  present,  to  prevent 
him  from  using  it,  and  they  were  able  to  take  it  from 
him  only  after  a  violent  struggle. 

The  petitioner  Neagle  wrenched  the  knife  from 
his  hand,  whilst  four  other  persons  held  on  to  the 
arms  and  body  of  Terry,  one  of  whom  presented  a 
pistol  to  his  head,  threatening  at  the  same  time  to  shoot 
him  if  he  did  not  give  up  the  knife.  To  these  threats 
Terry  paid  no  attention,  but  held  on  to  the  knife,  actu¬ 
ally  passing  it  during  the  struggle  from  one  hand  to 
another. 

Mr.  Cross,  a  prominent  attorney,  who  on  that  occa¬ 
sion  sat  next  to  Mrs.  Terry,  a  little  to  her  left  and  rear, 
testifies  that  just  before  she  arose  to  interrupt  Justice 
Field,  she  nervously  worked  at  the  clasp  of  a  small 
satchel  about  nine  inches  long,  and  tried  to  open  it  ; 
and  not  succeeding,  in  consequence  of  her  excitement, 
she  hastily  sprang  to  her  feet  and  interrupted  the 
Justice  as  hereinbefore  stated.  Knowing  that  she  had 
before  drawn  a  pistol  from  a  similar  satchel  in  the 
Master’s  room,  he  concluded  at  this  time  that  she  was 
trying  to  get  her  pistol  out,  and  he  consequently  held 
himself  in  readiness  to  seize  her  arm  as  soon  as  it 
should  appear,  and  endeavor  to  prevent  its  use  until  he 
could  get  assistance,  his  right  arm  being  partially  dis¬ 
abled.  For  one  occasion  in  the  Master’s  office  see 
(Sharon  vs.  Hill,  11  Sawyer,  123.)  At  this  time  Mrs. 
Terry  sat  directly  in  front  of  Justice  Field  and  the 
Circuit  Judge,  less  than  four  yards  from  either.  A 
loaded  revolver  was  afterwards  taken  from  this  satchel 


8 


by  the  Marshal.  For  their  conduct  and  resistance  to 
the  execution  of  the  order  of  the  Court,  the  defendants, 
Sarah  Althea  Terry  and  David  S.  Terry,  were  adjudged 
guilty  of  contempt  and  ordered  to  be  imprisoned,  the 
former  for  thirty  days  and  the  latter  for  six  months. 

In  consequence  of  the  imprisonment  which  fol¬ 
lowed,  various  threats  of  personal  violence  to  Justice 
Field  and  the  Circuit  Judge  were  made  by 
Terry  and  his  wife.  Those  threats  were  that  they 
would  take  the  lives  of  both  of  those  Judges;  those 
against  Justice  Field  were  sometimes  that  they  would 
take  his  life  directly,  at  other  times  that  they  would 
subject  him  to  great  personal  indignities  and  humili¬ 
ations,  and  if  he  resented  it  they  would  kill  him. 

These  threats  were  not  made  in  ambiguous  terms, 
but  openly  and  repeatedly,  not  to  one  person,  but  to 
many  persons,  until  they  became  the  subject  of  con¬ 
versation  throughout  the  State  and  of  notice  in  the 
public  journals.  Reports  of  these  threats  through 
the  press  and  through  reports  of  the  United  States 
Marshal  and  United  States  Attorney  reached  Washing¬ 
ton,  and  in  consequence  of  them  the  Attorney-General 
thought  proper  to  give  instructions  to  the  Marshal  of 
the  United  States  for  the  Northern  District  of  Cali¬ 
fornia  to  take  proper  measures  to  protect  the  persons 
of  those  judges  from  violence  at  the  hands  of  Terry 
and  his  wife.  On  the  return  of  Justice  Field  from 
Washington  to  attend  his  circuit  in  June  last,  the 
probability  of  an  attack  by  Judge  Terry  upon  him 
was  the  subject  of  conversation  throughout  the  State 
and  of  notices  in  some  of  the  journals  in  the  city  of 
San  Francisco.  It  was  the  general  expectation  that  if 
Judge  Terry  met  Justice  Field  violence  would  be 
attempted  upon  the  latter. 

In  consequence  of  this  general  belief  and  expecta¬ 
tion,  and  the  fact  that  the  Attorney-General  of  the 


9 


United  States  had  given  instructions  to  the  Marshal 
to  see  that  the  persons  of  Justice  Field  and  of  the 
Circuit  Judge  should  be  protected  from  violence,  the 
Marshal  of  the  Northern  district  appointed  the  peti¬ 
tioner  in  this  case,  David  N eagle,  to  accompany  Mr. 
Justice  Field  whilst  engaged  in  the  performance  of 
his  duties  aod  whilst  passing  from  one  district  to 
another  within  his  circuit,  so  as  to  guard  him  against 
the  tln’eatened  attacks.  He  was  specially  commis¬ 
sioned  as  a  deputy  by  Mr.  Franks,  whose  instructions 
to  him  were  that  he  should  protect  Justice  Field  at  all 
hazards,  and  knowing  the  violent  and  desperate  char¬ 
acter  of  Terry,  that  he  should  be  active  and 
alert,  and  be  fully  prepared  for  any  emergency,  but 
not  to  be  rash;  and  in  case  any  violence  was  attempted 
from  anyone,  to  call  upon  the  assailant  to  stop,  and 
to  inform  him  that  he  was  an  officer  of  the  United 
States. 

Judge  Terry  was  a  man  of  great  size  and  strength, 
who  had  the  reputation  of  being  always  armed  with  a 
bowie-knife,  in  the  use  of  which  he  was  specially 
skilled,  and  of  showing  great  readiness  to  draw  and 
use  it  upon  persons  towaixls  whom  he  entertained  an}7 
enmity  or  had  any  grievance,  real  or  fancied. 

On  the  8th  of  August,  1889,  Justice  Field  left  San 
Francisco  for  Los  Angeles  in  order  to  hear  a  habeas 
corpus  case  which  was  returnable  before  him  at  that 
city  on  the  10th  of  August,  and  also  to  be  present  at 
the  opening  of  the  court  on  the  12th.  He  was  accom¬ 
panied  by  Deputy  Marshal  Neagle,  the  petitioner. 
Justice  Field  heard  the  habeas  corpus  case  on  the  10th 
of  August.  On  the  12th  of  August  he  opened  the  Cir¬ 
cuit  Court,  Judge  Ross  sitting  with  him,  and  he  deliv¬ 
ered  on  the  latter  day  an  opinion  in  an  important  land 
case,  and  also  an  opinion  in  the  habeas  corpus  case.  On 
the  following  day  the  Court  heard  an  application  for 


10 


an  injunction  in  an  important  water  case  from  San 
Diego  County.  No  other  cases  being  ready  for  hear¬ 
ing  before  the  Circuit  Court,  he  took  the  train  on 
Tuesday,  the  13th,  at  1  :30  o’clock  in  the  afternoon,  for 
San  Francisco,  where  he  was  expected  to  hear  a  case 
then  awaiting  his  arrival  immediately  upon  his 
return,  being  accompanied  on  his  return  by 
Deputy  Marshal  Neagle.  On  the  morning  of  the 
14th,  between  the  hours  of  seven  and  eight,  the  train 
arrived  at  Lathrop,  in  San  Joaquin  County,  which  is 
in  the  Northern  District  of  California,  a  station  at 
which  the  train  stopped  for  breakfast.  Justice  Field 
and  the  Deputy  Marshal  at  once  entered  the  dining¬ 
room  there  to  take  their  breakfast,  and  took  their  seats 
at  the  third  table  in  the  middle  row  of  tables.  Justice 
Field  seated  himself  at  the  extreme  end,  on  the  side 
looking  toward  the  door.  The  Deputy  Marshal  took 
the  next  seat  on  the  left  of  the  Justice.  What  subse- 
quently  occurred  is  thus  stated  in  the  testimony  of 
J ustice  Field: 

“  A  few  minutes  afterward  Judge  Terry  and  his  wife 
came  in.  When  Mrs.  Terry  saw  me,  which  she  did 
directly  she  got  diagonally  opposite  me,  she  wheeled 
around  suddenly  and  went  out  in  great  haste.  I  after¬ 
wards  understood,  as  you  heard  here,  that  she  went  for 
her  satchel.  Judge  Terry  walked  past,  opposite  to  me, 
and  took  his  seat  at  the  second  table  below.  The  only 
remark  I  made  to  Mr.  Neagle  was,  4  There  is  Judge 
Terry  and  his  wife.’  He  remarked,  4 1  see  him.’  Not 
another  word  was  said.  I  commenced  eating  my  break¬ 
fast.  1  saw  Judge  Terry  take  his  seat.  In  a  moment 
or  two  afterwards  I  looked  round  and  saw  Judge  Terry 
rise  from  his  seat.  I  supposed  at  the  time  he  was  go¬ 
ing  out  to  meet  his  wife,  as  she  had  not  returned,  so  I 
went  on  with  my  breakfast.  It  seems,  however,  that 
he  came  round  back  of  me — I  did  not  see  him — and  he 


11 


struck  me  a  violent  blow  in  the  face,  followed  instan¬ 
taneously  by  another  blow.  Coming  so  immediately 
together,  the  two  blows  seemed  like  one  assault.  I 
heard  ‘  Stop,  stop,’  cried  by  Neagle.  Of  course  I  was 
for  a  moment  dazed  by  the  blows.  I  turned  my  head 
round  and  I  saw  that  great  form  of  'berry’s,  with  his  arm 
raised  and  his  fists  clenched  to  strike  me.  I  felt  that 
a  terrific  blow  was  coming,  and  his  arm  was  descending- 
in  a  curved  way,  as  though  to  strike  the  side  of  my 
temple,  when  I  heard  Neagle  cry  out,  “Stop,  stop,  I 
am  an  officer.’  Inst°ntly  two  shots  followed.  I  can 
only  explain  the  second  shot  from  the  fact  that  he  did 
not  fall  instantly.  I  did  not  get  up  from  my  seat, 
although  it  is  proper  for  me  to  say  that  a  fi’iend  of 
mine  thinks  that  I  did;  but  I  did  not.  I  looked  around 
and  saw  Terry  on  the  floor.  I  looked  at  him  and  saw 
that  peculiar  movement  of  the  eyes  that  indicates  the 
presence  of  death.  Of  course  it  was  a  great  shock  to 
me.  It  is  impossible  for  anyone  to  see  a  man  in  the 
full  vigor  of  life,  with  all  those  faculties  that  consti¬ 
tute  life,  instantly  extinguished,  without  being  affected, 
and  I  was.  I  looked  at  him  for  a  moment,  then  rose 
from  my  seat,  went  around  and  looked  at  him  again, 
and  passed  on.  Great  excitement  followed.  A  gentle¬ 
man  came  to  me  whom  I  did  not  know,  but  I  think  it 
was  Mr.  Lidgerwood,  who  lias  been  examined  as  a  wit¬ 
ness  in  this  case,  and  said  :  ‘  What  is  this  V  ’  I  said  : 

‘  I  am  a  Justice  of  the  Supreme  Court  of  the  United 
States.  My  name  is  Judge  Field.  Judge  Terry  threat¬ 
ened  my  life,  and  attacked  me,  and  the  Deputy  Marshal 
has  shot  him.’  The  Deputy  Marshal  was  perfectly  cool 
and  collected,  and  stated  :  “I  am  a  Deputy  Marshal 
and  I  have  shot  him  to  protect  the  life  of  Judge  Field.’ 
I  cannot  give  you  the  exact  words,  but  I  give  them  to 
you  as  near  as  I  can  remember  them.  A  few  moments 
afterwards  the  Deputy  Marshal  said  to  me:  ‘Judge,  I 


12 


think  you  had  better  go  to  the  car.’  I  said,  ‘Very 
well.’  Then  this  gentleman.  Mr.  Lidgenvood,  said:  ‘  T 
think  you  had  better.’  And  with  the  two  I  went  to  the  car. 
I  asked  Mr.  Lidgerwood  to  go  back  and  get  my  hat  and 
cane,  which  he  did.  The  Marshal  went  with  me. remained 
for  some  time  and  then  left  his  seat  in  the  car,  and 
as  I  thought  went  back  to  the  dining-room.  (This  is, 
however,  I  am  told,  a  mistake,  and  that  he  only  went 
to  the  end  of  the  car).  He  returned,  and  either  he  or 
someone  else  stated  that  there  was  great  excitement, 
that  Mrs.  Terry  was  calling  for  some  violent  proceed¬ 
ings.  I  must  say  here  that,  dreadful  as  it  is  to  take 
life,  it  was  only  a  question  of  seconds  whether  my  life 
or  Judge  Terry’s  life  should  be  taken.  I  am  firmly  con¬ 
vinced  that  had  the  Marshal  delayed  two  seconds  both 
he  and  myself  would  have  been  the  victims  of  Terry.’ 

In  answer  to  a  question  whether  he  had  a  pistol  or 
other  weapon  on  the  occasion  of  the  homicide,  Justice 
Field  replied:  “No,  Sir.  I  have  never  had  on  my 
person,  or  used  a  weapon  since  I  went  on  the  bench  of 
the  Supreme  Court  of  the  State,  on  October  13,  1857, 
except  once.”  That  was  on  an  occasion  when  he  cross¬ 
ed  the  Sierra  Nevada  Mountains,  in  1862.  “With  that 
exception,  I  have  not  had  on  my  person,  or  used  a 
pistol  or  other  deadly  weapon.” 

Mr.  Neagle  in  his  testimony  stated  that  before  the 
train  arrived  at  Fresno,  lie  got  up  and  went  out  on  the 
platform,  leaving  the  train,  and  there  saw  Judge 
Terry  and  his  wfife  get  on  the  cars;  that  when  the 
train  arrived  at  Merced  he  spoke  to  the  conductor. 
Woodward,  and  informed  him  that  he  was  a  Deputy 
United  States  Marshal;  that  Judge  Field  was  on  the 
train,  and  also  Judge  Terry  and  his  wife,  and  that  he 
was  apprehensive  that  when  the  train  arrived  at 
Lathrop  there  would  be  trouble  between  those  parties, 
and  inquired  whether  there  was  any  officer  at  that 


13 


station,  and  was  informed  in  reply  that  there  was  a 
constable  there;  that  he  then  requested  the  conductor 
to  send  word  to  the  officer  to  be  at  Lathrop  on  the 
arrival  of  the  train,  and  that  he  also  applied  to  other- 
parties  to  induce  them  to  endeavor  to  secure  assistance 
for  him  at  that  place  in  case  it  should  be  needed.  The 
Deputy  Marshal  further  stated  that  when  the  train 
arrived  at  Lathrop  Justice  Field  went  into  the  dining¬ 
room,  he  accompanying  the  Justice;  that  they  took 
seats  at  a  table,  that  shortly  after  they  were  seated, 
Judge  Terry  and  his  wife  entered  the  dining-room, 
his  wife  following  him  several  feet  in  the  rear;  that 
when  the  wife  reached  a  point  nearly  opposite  Justice 
Field,  she  turned  around  and  went  out  rapidly  from 
the  room,  and,  as  appeared  from  what  afterward  fol¬ 
lowed,  she  went  to  the  car  to  get  her  satchel. 
When  she  returned  from  the  car,  the  satchel  was  taken 
from  her,  and  it  was  found  to  contain  a  pistol — revol¬ 
ver — containing  six  chambers,  all  of  which  were 
loaded  with  ball.  This  pistol  lay  on  the  top  of  the 
other  articles  in  the  satchel.  The  witness  further  stated 
that  Judge  Terry  passed  down  opposite  Justice  Field, 
to  a  table  below  where  they  were  sitting;  that  in  a 
few  minutes,  whilst  Justice  Field  was  eating,  Judge 
Terry  rose  from  his  seat,  went  around  behind  him — the 
Justice  not  seeing  him  at  the  time — and  struck  him 
two  blows,  one  on  the  side  and  the  other  on  the  back 
of  the  head;  that  the  second  blow  followed  the  other 
immediately;  that  one  was  given  with  the  right  hand 
and  the  other  with  the  left;  that  Judge  Terry  then 
drew  back  his  hand,  with  his  fist  clenched,  apparently 
to  give  the  Justice  a  violent  blow  on  the  side 
of  his  head,  when  he,  Neagle,  sprang  to  his  feet, 
calling  out  to  Terry,  “Stop!  Stop!  I  am  an  officer:” 
that  Terry  bore  at  the  time  on  his  face  an  expression 
of  intense  hate  and  passion,  the  most  malignant  the 


14 


witness  had  ever  seen  in  his  life,  and  that  he  had  seen 
a  great  man)7  men  in  his  time  in  such  situations,  and 
that  the  expression  meant  life  or  death  for  one  or  the 
other;  that  as  he  cried  out  those  words,  “Stop!  Stop  1 
I  am  an  officer,”  he  jumped  between  Terry  and  Justice 
Field,  and  at  that  moment  Judge  Terry  appeared  to 
recognize  him,  and  instantly,  with  a  growl,  moved  his 
right  hand  to  his  left  breast,  to  the  position  whei'e  he 
usually  carried  his  bowie-knife;  that,  as  his  hand  got 
there,  the  Deputy  Marshal  raised  his  pistol  and  shot 
twice  in  rapid  succession,  killing  him  almost  instantly. 
He  further  stated  that  the  position  of  Judge  Field  was 
such — his  legs  being  at  the  time  under  the  table,  and 
he  sitting — that  it  would  have  been  impossible  for  him 
to  have  done  anything  even  if  he  had  been  armed, 
and  that  Judge  Terry  had  a  very  furious  expression, 
which  was  characterized  by  the  witness  as  that  of  an 
infuriated  giant.  He  also  added,  that  his  cry  to  him 
to  stop  was  so  loud  that  it  could  be  heard  throughout 
the  whole  room,  and  that  he  believed  that  a  delay  in 
shooting  of  two  seconds  would  have  been  fatal  both  to 
himself  and  Justice  Field. 

The  facts  thus  stated  in  the  testimony  of  Justice 
Field  and  the  petitioner,  were  corroborated  by  the 
testimony  of  all  the  witnesses  to  the  transaction.  The 
petitioner  soon  afterwards  accompanied  Justice  Field 
to  the  car,  and  whilst  in  the  car  he  was  arrested  by  a 
constable,  and  at  the  station  below  Lathrop  was  taken 
by  that  officer  from  the  car  to  Stockton,  the  county  seat 
of  San  Joaquin  County,  where  he  was  lodged  in  the 
county  jail.  Mr.  Justice  Field  was  obliged  to  con¬ 
tinue  on  to  San  Francisco  without  the  protection  of  any 
officer.  On  the  evening  of  that  day  Mrs.  Terry,  who 
did  not  see  the  transaction,  but  was  at  the  time  out¬ 
side  of  the  dining-room,  made  an  affidavit  that  the 
killing  of  Judge  Terry  was  murder,  and  charged  Justice 


15 


Field  and  Deputy  Marshal  N eagle  with  the  commis¬ 
sion  of  the  crime.  Upon  this  affidavit,  a  warrant  was 
issued  by  a  Justice  of  the  Peace  at  Stockton  against 
Neagle  and  also  against  Justice  Field.  Subsequently, 
after  the  arrest  of  Justice  Field,  and  after  his  being 
released  by  the  United  States  Circuit  Court  on  habeas 
corpus  upon  his  own  recognizance,  the  proceeding 
against  him  before  the  Justice  of  the  Peace  was  dis¬ 
missed,  the  Governor  of  the  State  having  written  a 
letter  to  the  Attorney-General  of  the  State,  declaring 
that  the  proceeding,  if  persisted  in.  would  be  a  burn¬ 
ing  disgrace  to  the  State,  and  the  Attorney-General 
having  advised  the  District  Attorney  of  San  Joaquin 
County  to  dismiss  it.  There  was  no  other  testimony 
whatever  before  the  Justice  of  the  Peace  except  the 
affidavit  of  Sarah  Althea  Terry  upon  which  the  war¬ 
rant  was  issued. 

In  the  suit  of  William  Sharon  against  Mrs.  Terry  in 
the  Circuit  Court  of  the  United  States,  it  was  adjudged 
that  the  alleged  marriage  contract  between  her  and 
Sharon,  produced  by  her,  was  a  forgery,  and  it  was 
held  that  she  had  attempted  to  support  it  by  perjury 
and  subornation  of  perjury.  She  had  also  made  threats 
during  the  past  year,  and  up  to  the  time  of  the  shoot¬ 
ing  of  Judge  Terry,  that  she  would  kill  the  Circuit 
Judge  and  Justice  Field,  and  she  repeated  that  threat 
up  to  the  time  she  made  her  affidavit  for  the  arrest  of 
Justice  Field  and  Neagle;  and  that  she  had  made  such 
threats  was  a  notorious  fact  in  Stockton  and  through¬ 
out  the  State. 

The  petition  was  accordingly  presented,  on  behalf  of 
Neagle,  to  the  Circuit  Court  of  the  United  States  for  a 
writ  of  habeas  corpus  in  this  case,  alleging,  among  other 
things,  that  he  was  arrested  and  confined  in  prison 
for  an  act  done  by  him  in  the  performance  of  his  duty, 
namely,  the  protection  of  Mr.  Justice  Field,  and  taken 


16 


away  from  the  further  protection  which  he  was  or¬ 
dered  to  give  to  him.  The  writ  was  issued,  and  upon 
its  return,  the  Sheriff  of  San  Joaquin  County  produced 
a  copy  of  the  warrant  issued  by  the  Justice  of  the 
Peace  of  that  county,  and  of  the  affidavit  of  Sarah  Al¬ 
thea  Terry  upon  which  it  was  issued.  A  traverse  to 
that  return  was  then  tiled  in  this  case,  presenting  vari¬ 
ous  grounds  wiry  the  petitioner  should  not  be  held, 
the  most  important  of  which  were,  that  an  officer  of 
the  United  States,  specially  charged  with  a  particular 
duty,  that  of  protecting  one  of  the  Justices  of  the  Su¬ 
preme  Court  of  the  United  States  whilst  engaged  in 
the  performance  of  his  duty,  could  not,  for  an  act  con¬ 
stituting  the  very  performance  of  that  duty,  be  taken 
from  the  further  discharge  of  his  duty  and  imprisoned 
by  the  State  authorities,  and  that  when  an  officer  of 
the  United  States  in  the  discharge  of  his  duties  is 
charged  with  an  offense  consisting  in  the  performance 
of  those  duties,  and  is  sought  to  be  arrested,  and  taken 
from  the  further  performance  of  them,  he  can  be 
brought  before  the  tribunals  of  the  nation  of  which  he 
is  an  officer,  and  the  fact  then  inquired  into.  The  At¬ 
torney-General  of  the  State  appeared  with  the  District 
Attorney  of  San  Joaquin  County,  and  contended  that 
the  offense  of  which  the  petitioner  is  charged  could 
only  be  inquired  into  before  the  tribunals  of  the  State. 

The  question  of  the  jurisdiction  of  the  national  tribu¬ 
nal  to  interfere  in  the  matter  was  elaborately  argued  by 
counsel,  the  Attorney-General  of  the  State  and  Mr. 
Langhorne  appearing  with  the  District  Attorney  of 
San  Joaquin  county  on  behalf  of  the  State,  and  Mi’. 
Care}’,  United  States  Attorney,  and  Messrs.  Herrin, 
Mesick  and  Wilson  appearing  on  behalf  of  the  peti¬ 
tioner.  The  latter  did  not  pretend  that  any  person  in 
this  State,  high  or  low,  who  committed  a  crime,  might 
not  be  tried  by  the  local  authorities  if  it  were  a  crime 


17 


against  the  State,  but  that  when  in  the  performance  of 
his  duties  that  alleged  crime  consisted  in  an  act  which 
is  deemed  a  part  of  the  performance  of  a  duty  de¬ 
volved  upon  him  by  the  laws  of  the  United  States,  it 
was  within  the  competency  of  the  national  tribunals  to 
determine  in  the  first  instance  whether  that  act  was  a 
duty  devolving  upon  him,  and  if  it  was  a  duty  devolv¬ 
ing  upon  him  the  officer  had  committed  no  offense 
against  the  State  and  wras  entitled  to  be  discharged. 

John  T.  Carey,  United  States  Attorney;  Richard  S. 
Mesick,  Samuel  M.  Wilson,  Wm.  F.  Herrin,  W.  L. 
Dudley,  C.  L.  Ackerman,  J.  C.  Campbell,  H.  C. 
McPike,  for  the  Petitioner. 

G.  A.  Johnson,  Attorney-General,  State  of  California; 
J.  P.  Langhorne;  Avery  C.  White,  District  At¬ 
torney,  San  Joaquin  County,  Cal.,  for  the  Re¬ 
spondent. 

OPINION  OF  THE  COURT. 

By  the  Court,  Sawyer,  Circuit  Judge:  The  petitioner 
has  sued  out  a  writ  of  habeas  corpus,  returnable  before 
the  Court,  alleging  that  he  is  unlawfully  deprived  of  his 
liberty  and  imprisoned  by  virtue  of  a  warrant  issued 
by  a  Justice  of  the  Peace  of  San  Joaquin  county,  in 
this  State,  charging  him  with  a  felonious  homicide, 
whilst  the  act  thus  characterized  was  a  lawful  act  per¬ 
formed  in  the  discharge  of  his  duties  as  an  officer  of 
the  United  States;  and  the  first  question  presented  is 
whether  this  Court  has  jurisdiction  to  inquire  into  the 
truth  of  that  allegation. 

Upon  the  question  of  jurisdiction,  Section  751,  R. 
S.,  provides  that  “the  Supreme  Court  and  the  Circuit 
and  District  Courts  shall  have  power  to  issue  writs  of 
habeas  corpus;”  and  Section  752  further  provides  that 


18 


“the  several  justices  and  judges  of  the  said  courts,  with¬ 
in  their  respective  jurisdictions,  shall  have  power  to 
grant  writs  of  habeas  corpus  for  the  purpose  of  an  in¬ 
quiry  into  the  cause  of  restraint  of  liberty.  ”  There  is  no 
limit  in  these  provisions  to  the  jurisdiction  of  these 
courts  and  judges  to  inquire  into  the  restraint  of  liberty 
of  any  person.  But  Section  753  prescribes  some 
limitations,  among  which  is  “that  the  writ  shall 
not  extend  to  a  prisoner  in  jail,  *  *  *  unless  he  is 

in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States,  or  of  an  order,  process 
or  decree  of  a  Court  thereof,  or  in  custody  in  violation 
of  the  Constitution,  or  of  a  law  or  treaty  of  the  United 
States,”  and  this  legislation,  in  the  language  of  the 
Chief  Justice,  in  McCardle's  case,  (6  Wall.,  325-6),  in 
commenting  upon  the  same  provision  in  a  prior  act. 
“is  of  the  most  comprehensive  character.  It  brings 
within  the  habeas  corpus  jurisdiction  of  every  Court, 
and  of  every  Judge,  every  possible  case  of  privation  of 
liberty,  contrary  to  the  National  Constitution,  treaties 
or  laws.  It  is  impossible  to  widen  this  jurisdiction.” 
And  again,  in  Ex  Parte  Royall,  117  U.  S.,  219,  the  Su¬ 
preme  Court  says,  “As  the  judicial  power  of  the  nation 
extends  to  all  cases  arising  under  the  Constitution,  the 
laws  and  treaties  of  the  United  States;  as  the  privilege 
of  the  writ  of  habeas  corpus  cannot  be  suspended  unless 
when  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it;  and  as  Congress  has  powrer  to 
pass  all  laws  necessary  and  proper  to  carry  into  execu¬ 
tion  the  powers  vested  by  the  Constitution  in  the  Gov¬ 
ernment  of  the  United  States,  or  in  any  department  or 
officer  thereof;  no  doubt  can  exist  as  to  the  powrnr  of 
Congress  thus  to  enlarge  the  jurisdiction  of  the  courts 
of  the  Union,  and  of  their  justices  and  judges.  That 
the  petitioner  is  held  under  the  authority  of  a  State 
cannot  effect  the  question  of  the  power  or  jurisdiction 


19 


of  the  Circuit  Court,  to  inquire  into  the  cause  of  his 
commitment,  and  to  discharge  him  if  he  he  restrained 
of  his  liberty  in  violation  of  the  Constitution.  The 
Grand  Jurors  who  found  the  indictment,  the  Court  in¬ 
to  which  it  was  returned  and  by  whose  order  he  was 
arrested,  and  the  officer  who  holds  him  in  custody, 
are  all  equally  with  citizens,  under  a  duty,  from  the  dis¬ 
charge  of  which  the  State  could  not  release  them,  to 
respect  and  obey  the  supreme  law  of  the  land,  ‘any¬ 
thing  in  the  Constitution  and  laws  of  any  State  to  the 
contrary  notwithstanding,  ‘and  that  equal  power  does 
not  belong  to  the  courts  and  judges  of  the  several 
States;  that  they  cannot  under  any  authority  conferred 
by  the  State,  discharge  from  custody  persons  held  by 
authority  of  the  courts  of  the  United  States,  or  of 
commissioners  of  such  courts,  or  by  officers  of  the 
General  Government  acting  under  its  laws,  results 
from  the  supremacy  of  the  Constitution  and  laws  of 
the  United  States.”  Ableman  x s.  Booth,  21  How.,  506; 
Tarble’s  Case,  13  Wall.,  397;  Bohh  vs.  Connolly,  111  U. 
S.,  624. 

“We  are,  therefore,  of  opinion  that  the  Circuit  Court 
has  jurisdiction  upon  writ  of  habeas  corpus  to  inquire 
into  the  cause  of  appellant’s  commitment,  and  to  dis¬ 
charge  him,  if  he  be  held  in  custody  in  violation  of 
the  Constitution.” 

In  the  exercise  of  this  jurisdiction  there  is  no  con¬ 
flict  between  the  authority  of  the  State  and  of  the 
United  States.  The  State  in  such  cases  is  subordinate, 
and  the  National  Government  paramount.  “The  Con¬ 
stitution  and  laws  of  the  United  States  are  the 
supreme  law  of  the  land,  and  to  these  every  citizen  of 
every  State  owes  obedience,  whether  in  his  individual 
or  official  capacity.”  Siebold’s  case,  (100  U.  S.,  392); 
see  also  Tennessee  vs.  Davis,  (100  U.  S. .  257-8).  The 
exclusive  authority  of  the  State  to  determine 


20 


■whether  an  offense  lias  been  committed  against 
the  laws  of  the  State  is  now  earnestly  pressed 
upon  our  attention.  In  Siebold’s  case  the  Court 
says:  “  It  seems  to  be  often  overlooked  that  a 
national  constitution  has  been  adopted  in  this  country, 
establishing  a  real  government  therein,  operating 
upon  persons  and  territory  and  things;  and  which, 
moreover,  is,  or  should  be,  as  dear  to  every  American 
citizen  as  his  State  government  is.  Whenever  the  true 
conception  of  the  nature  of  this  government  is  once 
conceded,  no  real  difficulty  will  arise  in  the  just  inter¬ 
pretation  of  its  powers.  But  if  we  allow  ourselves 
to  regard  it  as  a  hostile  organization,  opposed  to  the 
proper  sovereignty  and  dignity  of  the  State  govern¬ 
ments,  we  shall  continue  to  be  vexed  with  difficulties 
as  to  its  jurisdiction  and  authority.  No  greater  jeal¬ 
ousy  is  required  to  be  exercised  toward  this  govern¬ 
ment  in  reference  to  the  preservation  of  our  liberties 
than  is  proper  to  be  exercised  toward  the  State  govern¬ 
ments.  Its  powers  are  limited  in  number  and  clearly 
defined,  and  its  action  within  the  scope  of  those 
powers  is  restrained  by  a  sufficiently  rigid  bill  of 
rights  for  the  protection  of  its  citizens  from  oppres¬ 
sion.  The  true  interest  of  the  people  of  this  country 
requires  that  both  the  National  and  State  Govern¬ 
ments  shall  be  allowed,  without  jealous  interference 
on  either  side,  to  exercise  all  the  powers  which  respect¬ 
ively  belong  to  them  according  to  a  fair  and  practical 
construction  of  the  Constitution.  State  rights  and 
the  rights  of  the  United  States  should  be  equally  res¬ 
pected.  Both  are  essential  to  the  preservation  of  our 
liberties  and  the  perpetuity  of  our  institutions.  But, 
in  endeavoring  to  vindicate  the  one,  we  should  not 
allow  our  zeal  to  nullify  or  impair  the  other.”  100 
U.  S.,  394;  see  Id.,  *2(56-7. 


21 


This  Court,  theu,  has  jurisdiction  to  inquire  upon 
this  writ  into  the  cause  of  the  imprisonment  of  the 
petitioner,  and  if,  upon  such  inquiry,  he  is  found  to 
be  “in  custody  for  an  act  done  or  committed  in  pur¬ 
suance  of  a  law  of  the  United  States,”  then  he  is  in 
custody  in  violation  of  the  Constiution  and  laws  of  the 
United  States,  and  he  is  entitled  to  be  discharged,  no 
matter  from  whom  or  under  what  authority  the  process 
under  which  he  is  held  may  have  issued — the  Consti¬ 
tution  and  laws  of  the  United  States  made  in  pursu¬ 
ance  thereof  being  the  supreme  law  of  the  land. 

The  homicide  in  question,  if  an  offense  at  all,  is,  it 
must  be  conceded,  an  offense  under  the  laws  of  the 
State  of  California,  and  only  the  State  can  deal  with 
it  as  such  or  in  that  aspect.  It  is  not  claimed  to  be 
an  offense  under  the  laws  of  the  United  States.  But 
if  the  killing  of  Terry  by  Neagle  was  an  “act  done 
*  *  *  in  pursuance  of  a  law  of  the  United  States,” 

within  the  powers  of  the  National  Government,  then 
it  is  not,  and  it  cannot  be,  an  offense  against  the  laws  of 
the  State  of  California,  no  matter  what  the  statute  of 
the  State  may  be,  the  laws  of  the  United  States  being 
the  supreme  law  of  the  land.  A  State  law  which 
contravenes  a  valid  law  of  the  United  States,  is  in  the 
nature  of  things,  necessarily  void — a  nullity.  It  must 
give  place  to  the  “  supreme  law  of  the  land.”  In  legal 
contemplation  there  can  no  more  be  two  valid  laws 
which  are  in  conflict,  operating  upon  the  same  subject 
matter  at  the  same  time,  than  in  physics  two  bodies 
can  occupy  the  same  space  at  the  same  time. 

But,  as  we  have  seen  by  the  authorities  cited,  it  is 
the  exclusive  province  of  the  Judiciaiy  of  the 
United  States  to  ultimately  and  conclusively  de¬ 
termine  any  question  of  right,  civil  or  criminal, 
arising  under  the  laws  of  the  United  States.  It  is, 
therefore,  the  prerogative  of  the  National  Courts  to 


22 


conclusively  construe  the  National  Statutes  and  de¬ 
termine  whether  the  homicide  in  question  was  the  re¬ 
sult  of  an  “  act  done  in  pursuance  of  a  law  of  the 
United  States,”  and  when  that  question  has  been  de¬ 
termined  in  the  affirmative,  the  petitioner  must 
be  discharged,  and  the  State  has  nothing  more  to 
do  with  the  matter.  All  we  claim  is  the  right  to 
determine  the  question,  was  the  homicide  the  result 
of  “.an  act  done  in  pursuance  of  a  law  of  the  United 
States?”  and  if  so,  discharge  the  petitioner. 

As  incidental  to  and  involved  in  that  question,  it  is 
necessary  to  inquire  whether  the  act  of  the  peti¬ 
tioner  was  performed  under  such  circumstances  as  to 
justify  it.  If  it  was,  then  he  was  in  the  line  of  his 
duty.  If  not,  then  it  was  outside  his  duty.  We  do 
not  make  the  inquiry  at  all  for  the  purpose  of 
determining  whether  the  act  was  an  offense,  or  justi¬ 
fiable  under  the  Statutes  of  the  State.  We  do 
not  assume  to  consider  the  case  in  that  aspect  at  all. 
We  simply  determine  whether  it  was  an  act  performed 
in  pursuance  of  a  law  of  the  United  States.  Nor  do 
we  act  in  this  matter  because  we  have  the  slightest  doubt 
as  to  the  impartiality  of  the  State  courts,  and  their  abil¬ 
ity  and  disposition  to,  ultimately,  do  exact  justice  to  the 
petitioner.  We  have  not  the  slightest  doubt  or  appre¬ 
hension  in  that  particular;  but  there  is  a  principle  in¬ 
volved.  The  question  is,  has  the  petitioner  a  right  to 
have  his  acts  adjudged,  and,  if  found  to  have  been 
performed  in  the  strict  line  of  his  authority  and  duty, 
a  further  right  to  be  protected  by  that  sovereignty 
whose  servant  he  is  and  whose  laws  he  was  executing? 
If  he  has  that  right,  then  there  is  no  encroachment  upon 
the  State  jurisdiction,  and  this  Court  must  necessarily 
entertain  his  petition  and  determine  his  rights  under 
it,  and  under  the  laws  of  the  United  States.  It  has 
no  discretion.  It  cannot  decline  to  hear  him  without 


23 


an  utter  disregard  of  one  of  the  most  important  duties 
imposed  upon  it  by  the  Constitution  and  laws  of  the 
United  States.  What  the  State  tribunals  might,  or 
might  not  do,  in  this  particular  instance  is  not  a 
matter  for  a  moment’s  consideration.  The  question 
is,  what  are  the  rights  of  the  petitioner  as  to  having 
his  case  heard  and  disposed  of  in  the  courts  of  the 
sovereignty  whose  servant  he  is  and  whose  laws  he 
was  employed  in  executing.  If  he  has  a  right  to  be 
heard  in  this  Court,  then  we  must  hear  him,  willing 
or  unwilling.  There  is  no  alternative.  Whether  the 
writ  should  issue,  in  this  case,  was  not  a  question  of 
“expediency,”  and  whether  the  petitioner  shall  be 
discharged  or  remanded  is  not  a  question  of  “  policy” 
or  “  comity,”  as  suggested  in  some  quarters.  It  is  a 
question  of  personal  right  and  personal  liberty  arising 
under  the  constitution  and  laws  of  the  United  States, 
which  the  Court  cannot  ignore.  There  is  a  class 
of  cases,  of  which  ex  parte  Royall  is  an  example,  in 
which  the  Court  may  exercise  a  discretion  as  to  the 
time  of  interference,  but,  in  our  opinion,  this  is  not  one 
of  them.  Exparte  Royall,  117  U.  S. ,  251.  Butifitrests 
in  our  discretion  to  discharge  or  remand  the  petitioner 
to  the  State  Courts,  to  be  there  first  tried  for  an  of¬ 
fense  against  the  State,  while  we  are  satisfied  that  he 
is  entitled  to  be  discharged,  to  what  useful  end  would 
he  be  sent  back,  since  upon  being  tried  and  convicted 
he  would  still  be  discharged  by  the  national  courts  on 
habeas  compus,  if  the  act  should  appear  to  them  to  have 
been  performed  in  pursuance  of  a  law  of  the  United 
States?  This  would  be  but  to  put  the  State  to  great 
useless  expense,  and  subject  the  petitioner,  if  guilty 
of  no  offense,  to  unjust  imprisonment  in  violation  of 
his  legal  rights,  until  his  trial  could  be  had,  and  his 
writ  of  habeas  corpus  afterwards  again  sued  out,  heard 
and  decided,  when  the  result,  in  all  probability,  would 


at  last  be  the  same.  Evidently,  public  justice  demands 
that  the  case  should  be  “  summarily”  decided  now.  as 
required  by  Section  701,  11.  S.  The  Court  has  no 
right  to  trifle  with  the  petitioner’s  constitutional 
rights  by  unnecessarily  subjecting  him  to  unjust  im¬ 
prisonment,  great  expense  and  vexatious  delays.  In 
case  of  a  remand  and  conviction,  the  national 
courts  must  hear  and  decide  the  case  at  last.  Far 
better  for  all  concerned  that  they  should  decide 
it  now,  and  forever  end  it.  We  have  no  desire 
to  usurp  a  jurisdiction  that  does  not  belong  to 
us.  We  have  enough  to  do  in  exercising  the  admitted 
jurisdiction  conferred  upon  us,  without  seeking  to  en¬ 
large  it  in  the  smallest  particular,  but  we  must  per¬ 
form  our  duty  as  we  understand  it,  be  the  conse¬ 
quences  what  they  may. 

The  Statutes  of  the  United  States  also  make  ample 
provision  for  giving  full  effect  to  the  jurisdiction  of 
this  Court  in  cases  where  the  petitioner  alleges  that 
he  is  restrained  of  his  liberty  in  violation  of  the  Con¬ 
stitution  or  of  a  law  of  the  United  States,  in  Section 
766,  which  reads  as  follows,  to  wit: 

‘‘Pending  the  proceedings  or  appeal  in  the  cases 
mentioned  in  the  three  preceding  sections,  and  until 
final  judgment  therein,  and  after  final  judgment  of 
discharge,  any  proceeding  against  the  person  so  im¬ 
prisoned  or  confined  or  restrained  of  his  liberty,  in 
any  State  court,  or  by  or  under  the  authority  of  any 
State,  for  any  matter  so  heard  and  determined,  or  in 
process  of  being  heard  and  determined,  under  such 
writ  of  habeas  corpus,  shall  be  deemed  null  and 
void.” 

It  is,  therefore,  only  necessaiy,  in  order  to  dispose 
of  the  case,  to  inquire  and  ascertain  whether  the  peti¬ 
tioner  is  in  custody  for  an  act  done  in  pursuance  of  a 
law  of  the  United  States. 


25 


As  we  have  seen  from  the  statement  of  facts,  Mr. 
Justice  Field,  of  the  United  States  Supreme  Court, 
allotted  to  the  Ninth  Circuit,  was  traveling,  officially, 
from  one  part  of  his  circuit  to  another,  in  pursuance  of 
the  requirements  of  the  statutes  of  the  United  States, 
for  the  purpose  of  holding  a  Circuit  Court.  By  reason 
of  threats  against  his  life  made  by  dissatisfied  litigants, 
generally  known  and  published  in  the  newspapers  and 
brought  to  the  knowledge  of  the  United  States  Marshal 
for  the  Northern  District  of  California,  and  by  him 
called  to  the  attention  of  the  Attorney-General  of  the 
United  States,  that  officer  directed  the  Marshal  to 
furnish  the  Justice  with  protection  while  thus  engaged 
in  the  performance  of  his  judicial  duties  on  the  circuit. 
The  Marshal,  deeming  it  proper,  furnished  the  neces¬ 
sary  protection  by  assigning  that  duty  to  the  petitioner, 
wffio  was  a  United  States  Deputy  Marshal.  The  claim 
is  that  the  petitioner,  as  such  Deputy  Marshal,  was 
affording  the  ouly  protection  practicable  to  Justice 
Field,  in  the  lawful  discharge  of  his  duty,  when  the 
homicide  was  committed,  and  that  the  killing  was  neces¬ 
sary  for  the  preservation  of  the  lives  of  both  Justice 
Field  and  himself  at  the  time  the  fatal  shot  was  fired. 
The  homicide  was  committed  at  Batlirop,  and  not  upon 
land  purchased  by  the  United  States  with  the  consent 
of  the  State  for  the  needful  uses  of  the  United  States, 
in  pursuance  of  Article  1,  Section  8,  of  the  Constitu¬ 
tion. 

Conceding  the  points  to  be  as  stated,  do  they  pre¬ 
sent  a  case  of  an  act  performed  in  pursuance  of  a  law 
of  the  United  States,  subject  to  their  jurisdiction  and 
to  the  jurisdiction  of  this  Court,  and  is  the  petitioner 
held  under  an  arrest  on  a  charge  of  murder  by  the 
State,  “in  custody  in  violation  of  the  Constitution  or 
laws  of  the  United  States,”  within  the  meaning  of  the 
statute  ? 


26 


It  is  urged  that  since  the  homicide  was  committed 
in  the  State  at  large,  and  not  in  the  Courthouse  or 
upon  land  within  the  exclusive  jurisdiction  of  the 
United  States,  the  question  as  to  whether  the  homicide 
is  murder  is  a  question  arising  exclusively  under  the 
laws  of  the  State,  and  that  it  can  be  investigated  and 
determined  by  the  State  courts  alone.  It  is  admitted 
on  the  part  of  the  State  that  the  United  States  lias 
exclusive  jurisdiction  over  the  Custom  House  block 
and  “over  all  places  purchased  by  the  consent  of  the 
Legislature  of  the  State,  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock¬ 
yards,  and  other  needful  buildings,”  in  pursuance  of 
Section  8,  Article  I.  of  the  National  Constitution,  and 
that  the  State  has  no  jurisdiction  whatever  of  any 
offense  committed  in  such  places.  But  it  is  contend¬ 
ed  that  the  United  States  has  no  jurisdiction 
of  offenders  outside  the  lands  so  purchased,  in 
other  portions  of  the  State,  but  that  in  the  State  at 
large  the  jurisdiction  of  the  State  is  exclusive.  This 
proposition,  like  most  others  urged  by  those  who 
insist  on  extreme  State  rights  doctrines,  wholly  ignores 
the  principle  that  there  can  be  no  legal  conflict  or  in¬ 
consistency  in  matters  wherein  the  State  is  subordi¬ 
nate,  and  the  United  States  paramount — where  the 
Constitution  and  laws  of  the  United  States  are  the 
supreme  law  of  the  land.  We  have  already  seen  that 
although  in  certain  cases  the  courts  of  the  United 
States  have  jurisdiction  to  discharge  on  habeas  corpus, 
prisoners  held  in  custody  by  the  State  courts  in 
violation  of  the  Constitution  and  laws  of  the  United 
States,  yet  that  the  State  courts  1  ‘cannot  under  any 
authority  conferred  by  the  State,  discharge  from 
custody  persons  held  by  authority  of  the  courts  of  the 
United  States,  or  of  Commissioners  of  such  courts,  or 
by  officers  of  the  general  government  acting  under 


27 


such  laws,”  and  that  this  “  results  from  the  supremacy 
of  the  Constitution  and  laws  of  the  United  States.” 
This  principle,  established  in  the  Booth  and  Tarble 
cases,  was  recently  properly  recognized  by  the 
Supreme  Court  of  California,  when  upon  the  return  of 
the  writ  of  habeas  corpus  in  Terry’s  case,  it  appearing, 
that  he  was  in  custody  by  virtue  of  a  judgment  of  the 
United  States  Circuit  Court,  it  declined  to  require  the 
Sheriff  to  produce  his  body.  As  the  powers  and 
duties  of  the  State  and  National  courts  are  by  no 
means  reciprocal,  in  this  class  of  cases,  so  they  are  not 
reciprocal  in  the  matter  of  territorial  jurisdiction 
mentioned,  as  claimed  on  the  part  of  the  State.  The 
Constitution  and  laws  of  the  United  States,  as  to  those 
matters  wherein  they  are  supreme,  extend  over  every 
foot  of  the  territories  of  the  United  States,  and  the 
jurisdiction  of  its  courts  to  enforce  rights  derived 
thereunder,  is  as  extensive  as  the  territory  to  which 
they  are  applicable. 

In  Siebold’s  case,  the  Supreme  Court,  in  reply  to  an 
argument  in  favor  of  a  wide  extension  of  State  rights, 
uses  the  following  language,  peculiarly  applicable  to 
the  point  now  under  consideration:  “  Somewhat  akin 
to  the  argument  which  has  been  considered  is  the  objec¬ 
tion  ,  that  the  Deputy  Marshals  authorized  by  the  Act  of 
Congress  to  be  created  and  to  attend  the  elections  are 
authorized  to  keep  the  peace ;  and  that  this  is  a  duty 
which  belongs  to  the  State  authorities  alone.  It  is 
argued  that  the  preservation  of  'peace  and  good  order  in 
society  is  not  within  the  powers  confided  to  the  Government 
of  the  United  States,  but  belongs  exclusively  to  the  States. 
Here,  again,  we  are  met  with  the  theory  that  the  Gov¬ 
ernment  of  the  United  States  does  not  rest  upon  the 
soil  and  territory  of  the  country.  We  think  that  this 
theory  is  founded  on  an  entire  misconception  of  the 
nature  and  powers  of  that  Government.  We  hold  it 


28 


to  be  an  incontrovertible  principle,  that  the  Govern¬ 
ment  of  the  United  States  may,  by  means  of  physical 
force,  exercised  through  its  official  agents,  execute  on 
every  foot  of  American  soil  the  powers  and  functions 
that  belong  to  it.  This  necessarily  involves  the  power 
to  command  obedience  to  its  laws,  and  hence  the 
power  to  keep  the  peace  to  that  -  extent.” 

“This  power  to  enforce  its  laws  and  to  execute  its 
functions  in  all  places  does  not  derogate  from  the  power 
of  the  State  to  execute  its  laws  at  the  same  time  and 
in  the  same  places.  The  one  does  not  exclude  the 
other,  except  where  both  cannot  be  executed  at  the 
same  time.  In  that  case  the  words  of  the  Constitution 
itself  show  which  is  to  yield.  ‘  This  Constitution,  and 
all  laws  which  shall  be  made  in  pursuance  thereof, 
shall  *  *  *  be  the  supreme  law  of  the  land.”’ 

(100  U.  S.,  394-5).  And  again,  “  The  argument  is 
based  on  a  strained  and  impracticable  view  of  the  nature 
and  powers  of  the  National  Government.  It  must  execute 
its  powers  or  it  is  no  government .  It  must  execute  them  on 
the  land  as  ivell  as  on  the  sea,  on  things  as  ivell  as  on  per¬ 
sons.  And,  to  do  this,  it  must  necessarily  have  the  power 
to  command  obedience,  to  preserve  order  and  keep  the  peace-, 
and  no  person  or  power  in  this  land  has  the  right  to  resist 
or  question  its  authority,  so  long  as  it  keeps  within  the 
bounds  of  its  jurisdiction."  (Id.  396).  The  power  to 
keep  the  peace  is  a  police  power,  and  the  United  States 
has  the  power  to  keep  the  peace  in  matters  affecting 
their  sovereignty. 

There  can  be  no  doubt,  then,  that  the  jurisdiction  of 
the  United  States  is  not  affected  by  reason  of  the  place 
— the  locality — where  the  homicide  occurred.  If  the 
locality  is  a  necessary  element  of  jurisdiction,  a  majority 
of  the  offenses  created  by  the  statutes  would  be  out  of 
their  jurisdiction,  and  the  statutes  creating  such  offenses 
would  be  nullities,  and  practically  useless. 


29 


For  example,  for  a  quarter  of  a  century  the  United 
States  Courts  in  this  State  were  held  in  rented  build¬ 
ings,  owned  by  private  parties.  They  had  no  jurisdic¬ 
tion  over  them  under  the  provision  of  Section  8,  Arti¬ 
cle  I,  of  the  National  Constitution;  and  no  jurisdic¬ 
tion  other  than  that  had  over  other  portions  of  the 
country  to  which  the  Constitution  and  its  laws  ex¬ 
tended.  Had  an  assault  been  committed  in  open  Court 
upon  the  Judge,  in  one  of  these  buildings,  and  the  as¬ 
sailing  party  been  slain  by  the  Marshal  in  protecting 
the  Judge,  under  circumstances  excusing  or  justifying 
the  homicide,  would  it  be  pretended  that  the  Court 
would  have  no  jurisdiction  to  protect  him  from  inter¬ 
ference  by  the  State  Government?  Or  have  the 
United  States  and  their  courts  no  jurisdiction  over  the 
offense  of  resisting  a  United  States  Marshal  in  the  law¬ 
ful  execution  of  the  process  of  the  courts?  or  over  the 
crime  of  counterfeiting  the  coin  or  forging  the  bonds 
or  other  securities  of  the  United  States,  or  other  of¬ 
fenses  against  the  law's,  unless  the  offense  is  com¬ 
mitted  in  a  place  under  the  exclusive  jurisdiction 
of  the  United  States?  Such  a  claim  would  be 
preposterous. 

In  the  case  of  Tennessee  vs.  Davis,  the  defendant  was 
indicted  for  murder  in  killing  one  Haynes,  while  he 
was  engaged  in  discharging  his  duties  as  a  Deputy  Col¬ 
lector  of  Internal  Revenue  of  the  United  States,  and 
wdiicli  killing  Davis  claimed  was  in  self-defense.  The 
case  was  removed  to  the  Circuit  Court  of  the  United 
States  under  Section  643,  R.  S.  It  was  contended  that 
this  act  vras  an  encroachment  upon  State  rights, 
since  it  took  away  the  right  of  the  State  to  determine 
and  execute  its  own  criminal  laws;  and  was,  therefore, 
unconstitutional.  The  Supreme  Court  sustained  the 
act.  It  was  held  “that  the  United  States  is  a  govern¬ 
ment  with  authority  extending  over  all  the  territory  of 


30 


the  Union,  acting  upon  the  State  and  the  people  of  the 
State.”  In  deciding  the  case  the  Court  said:  “As  was 
said  in  Martin  vs.  Hunter,  (1  Wheat.  363),  the  ‘gen¬ 
eral  government  must  cease  to  exist  whenever  it  loses 
the  power  of  protecting  itself  in  the  exercise  of  its 
constitutional  powers.’  It  can  act  only  through  its  of¬ 
ficers  and  agents,  and  they  must  act  within  the  States. 
If,  when  thus  acting,  and  within  the  scope  of  their 
authority,  those  officers  can  be  arrested  and  brought 
to  trial  in  a  State  court,  for  an  alleged  offense  against 
the  laws  of  the  State,  yet  warranted  by  the  Fedeial 
authority  they  possess,  and  if  the  general  govern¬ 
ment  is  powerless  to  interfere  at  once  for  their  protec¬ 
tion;  if  their  protection  must  be  left  to  the  action  of 
the  State  court — the  operations  of  the  general  gov¬ 
ernment  may  at  any  time  be  arrested  at  the  will  of 
one  of  its  members.  The  legislation  of  a  State  may  be 
unfriendly.  It  may  affix  penalties  to  acts  done  under 
the  immediate  direction  of  the  national  government, 
and  in  obedience  to  its  laws.  It  may  deny  the  author¬ 
ity  conferred  by  those  laws.  The  State  court  may  ad¬ 
minister  not  only  the  laws  of  the  State,  but  equally 
Federal  law,  in  such  a  manner  as  to  paralyze  the  opera¬ 
tions  of  the  government.  And  even  if,  after  trial  and 
final  judgment  in  the  State  court,  a  case  can  be 
brought  into  the  United  States  court  for  review,  the 
officer  is  withdrawn  from  the  discharge  of  his  duty  during 
the  pendency  of  the  prosecution,  and  the  exercise  of  ac¬ 
knowledged  Federal  power  arrested.’' 

“We  do  not  think  such  an  element  of  weakness  is 
to  be  found  in  the  Constitution.  The  United  States 
is  a  government  with  authority  extending  over  the 
whole  territory  of  the  Union,  acting  upon  the  States 
and  upon  the  people  of  the  States.  AYhile  it  is  lim¬ 
ited  in  the  number  of  its  powers,  so  far  as  its  sover¬ 
eignty  extends  it  is  supreme.  No  State  government 


31 


can  exclude  it  from  the  exercise  of  any  authority  con¬ 
ferred  upon  it  by  the  Constitution,  obstruct  its  author¬ 
ized  officers  against  its  will,  or  withhold  from  it,  for  a 
moment,  the  cognizance  of  any  subject  which  that  in¬ 
strument  has  committed  to  it.’7  Tennessee  vs.  Davis, 
100  U.  S.,  262-3. 

These  expositions  of  the  territorial  extent  of  the 
jurisdiction  of  the  General  Government  are  authori¬ 
tative  and  conclusive,  and  the  result  is  that  wherever 
the  Constitution  and  laws  of  the  United  States  oper¬ 
ate  at  all,  the  State  laws  in  conflict  with  them  are 
subordinate,  and  those  of  the  United  States  are 
supreme  and  paramount. 

Numerous  cases  are  reported  in  the  books,  where¬ 
in  parties  arrested  for  offenses  under  the  State 
laws,  for  acts  performed  in  the  discharge  of  duties 
imposed  by  the  laws  of  the  United  States,  have  been 
discharged  from  imprisonment  on  habeas  corpus  by  the 
United  States  courts,  in  consonance  with  these  prin¬ 
ciples,  now  autlioratively  established  by  the  Supreme 
Court  of  the  United  States,  in  the  cases  cited,  and 
others  in  the  same  line. 

Thus,  in  ex  parte  Jenkins,  and  others,  Deputy  United 
States  Marshals,  who  were  arrested  on  the  warrant  of 
a  justice  of  the  peace  in  Pennsylvania,  for  shooting 
aud  wounding  a  negro,  who  resisted  an  arrest  attempted 
under  a  warrant  issued  by  the  United  States  Court  for 
a  fugitive  slave,  Mr.  Justice  Grier  of  the  United 
States  Circuit  Court,  took  jurisdiction  and  dis¬ 
charged  the  petitioners,  under  the  Act  of  1835,  since 
carried  into  the  Revised  Statues,  as  part  of  section 
753,  under  which  this  case  arises.  After  their  dis¬ 
charge,  they  were  arrested  again,  in  a  suit  by  the 
negro  for  tresspass,  upon  a  warrant  issued  by  a  judge 
of  the  Supreme  Court  of  Pennsylvania,  and  again 
discharged  on  habeas  corpus  by  the  United  States  Cir- 


32 


cuit  Court.  After  this  they  were  indicted  for  the  shooting 
and  wounding  of  the  negro  by  the  grand  jury  of  Lu¬ 
zerne  County,  and  a  third  time  released  on  habeas 
corpus.  Ex  parte  Jenkins,  2  Wall.,  Jr.  p.  521,  et  seq. 
In  the  first  of  these  cases  Mr.  Justice  Grier  observes, 
“What  then  have  we  power  to  do  on  the  return  of 
the  writ?” 

“The  writ  of  habeas  corpus  is  a  high  prerogative 
writ  known  to  the  common  law:  the  great  object  of 
which  is  the  liberation  of  those  who  may  be  in  prison 
without  sufficient  cause.  It  is  in  the  nature  of  a  writ 
of  error,  to  examine  the  legality  of  the  commitment. 
It  brings  the  body  of  the  prisoner  up,  together  with 
the  cause  of  his  commitment.  The  Court  can,  un¬ 
doubtedly,  inquire  into  the  sufficiency  of  that  cause.” 
*  *  *  “Warrants  of  arrest  issued  on  the 

application  of  private  informers,  may  show  on  their 
face  a  prima  facie  charge  sufficient  to  give  jurisdiction 
to  the  justice;  but  it  may  be  founded  on  mistake, 
ignorance,  malice,  or  perjury.  To  prrt  a  case  very 
similar  to  the  present — A  tells  B  that  he  has  seen  C 
kill  D.  B  runs  ofi' to  a  justice,  swears  to  the  murder 
boldly,  without  any  knowledge  of  the  facts,  and  takes 
out  a  warrant  for  C,  who  is  arrested  and  imprisoned 
in  consequence  thereof.  C  prays  a  habeas  corpus, 
and  shows  that  he  was  the  sheriff  of  the  county, 
and  hanged  D  in  pursuance  of  a  legal  warrant.  If  a 
court  could  not  discharge  a  prisoner  in  such  a  case 
because  the  warrant  was  regular  on  its  face  the  writ  of 
habeas  corpus  is  of  little  use.” 

“The  authority  confen-ed  on  the  judges  of  the 
United  States  by  this  Act  of  Congress  gives  them  all 
the  power  that  any  other  court  could  exercise  under 
the  writ  of  habeas  corpus,  or  gives  them  none  at  all. 
If  under  such  a  writ  they  may  not  discharge  their 
officer,  when  imprisoned  1  by  any  authority,  ’  for  an  act 


33 


clone  in  pursuance  of  a  law  of  the  United  States,  it 
would  be  impossible  to  discover  for  what  useful  pur¬ 
pose  the  act  was  passed.  Is  the  prisoner  to  be 
brought  before  them  only  that  they  may  acknowledge 
their  utter  impotence  to  protect  him  ?”  *  *  * 

In  ex  parte  Robinson  Mr.  Justice  McLean  held  that 
“a  writ  of  habeas  corpus  may  issue  to  relieve  an 
officer  of  the  Federal  Government  who  has  been  im¬ 
prisoned  under  State  Authority  for  the  perform¬ 
ance  of  his  duty.”  (6  McLean,  355.)  In  the  course 
ot'  the  decision  the  learned  Justice  observes:  “It 
is  a  general  principle  of  law,  to  which  I  know  of 
no  exception,  that  the  laws  of  every  government 
shall  be  construed  by  itself;  and  such  construction 
is  acted  upon  by  ‘the  judiciary  of  all  other  countries. 
By  the  Federal  Constitution  the  judicial  power  of 
the  United  States  is  declared  to  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  order  and  estab¬ 
lish.’  Under  this  provision  the  judiciary  of  the 
Union  gives  a  construction  to  the  laws  which  is 
obligatory  on  the  State  tribunals.  The  Constitution 
again  declares,  ‘the  Constitution  and  laws  of  the 
United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  Consti¬ 
tution  or  laws  of  any  State  to  the  contrary  notwith¬ 
standing.’  ”  (Id.  362.)  Thus,  it  is  the  exclusive  pre¬ 
rogative  of  the  National  Courts  to  finally  determine 
whether  an  act  performed  by  one  of  the  officers  of  the 
United  States,  and  especially  an  officer  of  the  Court 
itself,  is  done  in  pursuance  of  a  law  of  the  United 
States,  or  whether,  when  under  arrest  for  acts  per- 


34 


formed  in  connection  with  Ins  office,  he  is  “  in  custody 
in  violation  of  the  Constitution  or  of  a  law  of  the 
United  States. 

In  the  case  of  Huberts  vs.  Jailer  of  Fayette  County, 
Kentucky,  2  Abb., 365,  a  special  Deputy  United  States 
Marshal  was  arrested, under  tire  State  laws,  on  a  charge  of 
murder,  for  a  homicide  committed  by  him  in  attempting 
to  arrest  one  Cull  upon  a  warrant  issued  by  a  Commis¬ 
sioner  of  the  United  States  Circuit  Court,  for  offenses 
charged  to  have  been  committed  under  the  internal 
revenue  laws.  Upon  the  hearing,  the  United  States 
Circuit  Court  found  that  the  homicide  was  committed 
in  the  performance  of  “an  act  done  in  pursuance  of  a 
law  of  the  United  States,  or  of  a  process  of  a  court  or 
judge  of  the  same,”  and  discharged  the  petitioner. 
The  question  of  the  jurisdiction  of  the  Court,  and  the 
facts,  were  elaborately  discussed. 

So,  In  re  Ramsey,  2  Flippin,  451,  the  prisoner  was  a 
Deputy  United  States  Marshal,  in  custody  by  order  of 
a  State  Court,  on  a  charge  of  murder,  the  homicide 
having  been  committed  in  an  attempt  to  arrest,  upon 
a  warrant  issued  by  the  United  States  courts,  the 
party  slain.  The  Court  found  that  the  act  was  done  in 
pursuance  of  a  law  of  the  United  States;  that  petitioner 
was  justified  in  the  act  which  he  performed,  and  dis¬ 
charged  him.  See,  also,  to  the  same  effect,  In  re 
Neill,  8  Blatch,  167.  In  re  Farrand,  1  Abb.,  140 • 
Electoral  College  of  South  Carolina,  1  Hughes,  571: 
In  re  Hurst,  2  Flip.  510,  and  cases  collected  in  vol. 
20  Myers,  Fed.  Decisions,  698.  Thus  it  appears  to  be 
settle!,  beyond  controversy,  that,  where  a  party  is 
in  custody  by  State  authority,  for  an  act  done,  or 
omitted  to  be  done,  in  pursuance  of  any  specific  pro¬ 
vision  of  a  statute  of  the  United  States,  imposing  a 
duty  upon  him,  or  for  an  act  performed  justifiable  by 
the  circumstances  of  th  ;  case,  in  order  to  enable  him 


35 


to  perform  that  duty,  or  in  the  execution  of  any  order, 
or  process,  or  decree,  of  a  Court  of  the  United  States, 
or  of  a  judge  thereof,  the  courts  of  the  United  States 
have  jurisdiction  to  discharge  him  on  habeas  corpus, 
under  Section  753  of  the  Revised  Statutes.  In  such  a 
case,  the  laws  of  the  United  States  are  supreme,  and 
the  act  cannot  be  an  offense  against  the  laws  of  the 
State,  and  as  we  have  before  seen,  whether  an  act  is 
performed  in  pursuance  of  a  law  of  the  United  States, 
is  a  question  exclusively  for  the  United  States  Courts 
to  authoritatively  and  conclusively  determine.  They 
must  interpret  finally  the  laws  of  the  United  States. 
With  their  decision  the  State  cannot  interfere.  When 
the  United  States  Courts  have  spoken  on  the  subject, 
the  State  has  nothing  more  to  do  with  it. 

The  only  remaining  questions  to  determine  are: 

1 .  Was  the  homicide  now  in  question,  committed  by 
petitioner,  while  acting  in  discharge  of  a  duty  imposed 
upon  him  by  the  Constitution  or  laws  of  the  United 
States,  within  the  meaning  of  Section  753  of  the  Re¬ 
vised  Statutes? 

2.  Was  the  homicide  necessary,  or  was  it  reason¬ 
ably  apparent  to  the  mind  of  the  petitioner,  at  the 
time,  and  under  the  circumstances  then  existing,  that 
the  killing  was  necessary  in  order  to  a  full  and  com¬ 
plete  discharge  of  such  duty? 

It  is  urged  that  there  is  no  statute,  which,  specific¬ 
ally,  makes  it  the  duty  of  a  Marshal,  or  a  Deputy  ' 
Marshal,  to  protect  the  Judges  of  the  United  States 
Courts  while  out  of  the  court-room,  traveling  from  one 
point  to  another  in  the  Circuit,  on  official  business, 
from  the  violence  of  litigants,  who  have  become  offended 
at  adverse  decisions  made  by  such  judges  in  the 
performance  of  their  judicial  duties,  and  that 


3G 


Marshals,  or  deputies,  so  engaged,  are  not  within  the 
provisions  of  Section  753  of  the  Revised  Statutes. 

It  will  he  observed  that  the  language  of  tbe  provis¬ 
ion  of  Section  753  is  “an  act  done  *  *  *  in  pur¬ 
suance  of  a  late  of  the  United  States,”  not  in  pursuance 
of  a  statute  of  the  United  States. 

The  statutes  of  Congress,  in  their  express  provisions, 
do  not  present  all  the  law  of  the  United  States.  Their 
incidents  and  implications  are  as  much  a  part  of  the  law 
as  their  expi’ess  provisions.  When  they  prescribe  du¬ 
ties,  provide  for  the  accomplishment  of  certain  desig¬ 
nated  objects,  or  confer  authority  in  general  terms,  they 
carry  with  them  all  the  powers  essential  to  effect  the 
ends  designed. 

Says  the  Supreme  Court  in  Tennessee  vs.  Davis,  100 
U.  S. ,  264,  quoting  with  approbation  from  Chief  Justice 
Marshall: 

“  ‘  It  is  not  unusual  for  a  legislative  act  to  involve 
consequences  which  are  not  expressed.  An  officer,  for 
example,  is  ordered  to  arrest  an  individual.  It  is  not 
necessary,  nor  is  it  usual,  to  sa}r  that  he  shall  not  be  pun¬ 
ished  for  obeying  this  order.  His  security  is  implied 
in  the  order  itself.  It  is  no  unusual  tiling  for  an  Act 
of  Congress  to  imply,  without  expressing,  this  very  ex¬ 
emption  from  State  control.”  *  *  *  “  The  collectors 
of  the  revenue,  the  carriers  of  the  mail,  the  mint  es¬ 
tablishment,  and  all  those  institutions  which  are  public 
in  their  nature,  are  examples  in  point.  It  has  never  been 
doubted  that  all  who  are  employed  in  them  are  protected 
while  in  the  line  of  their  duty;  and  yet  this  protection  is 


37 


not  expressed  in  any  Act  of  Congress.  It  is  incidental 
to,  and  is  implied,  in  tlie  several  acts  by  which  those 
institutions  are  created;  and  is  secured  to  the  individ¬ 
uals  employed  in  them  by  the  judicial  power  alone — 
that  is,  the  judicial  power  is  the  instrument  employed 
b}T  the  government  in  administering  this  security.’  ” 

If  the  officers  referred  to  in  the  preceding  passage  are 
to  be  protected  while  in  the  line  of  their  duty,  without 
any  special  law  or  statute  requiring  such  protection, 
are  not  the  judges  of  the  courts — the  principal  officers 
in  a  department  of  the  government  second  to  no  other 
— also  to  be  protected,  and  are  not  their  executive 
subordinates — the  marshals  and  their  deputies — to  be 
shielded  from  harm  by  the  national  laws,  while 
honestly  engaged  in  protecting  the  heads  of  the 
courts  from  assassination?  When  it  was  argued 
in  Siebold’s  case  that  it  was  not  in  the  power 
of  the  United  States  to  authorize  the  United 
States  Marshals  to  1  ‘keep  the  peace ”  at  Congressional 
elections,  “that  the  preservation  of  peace  and  good  order 
in  society  is  not  within  the  powers  confided  to  the  Govern¬ 
ment  of  the  United  States,  but  belonged  exclusively  to  the 
State,"  we  have  seen  the  answer  of  the  Supreme 
Court  to  that  argument,  in  cases  where  the  rights  and 
interests  of  the  United  States  Government  were  involved 
in  the  matter  of  keeping  the  peace.  “We  hold  it  to  be 
an  incontrovertible  principle,”  said  the  Court,  “that 
the  government  of  the  United  States  may,  by  means 
of  physical  force,  exercised  through  its  official  agents, 
execute  on  every  foot  of  American  soil  the  powers 
and  functions  that  belong  to  it.  This  necessarily  in¬ 
volves  the  power  to  command  obedience  to  its  laws,  and 
hence  the  power  to  keep  the  peace  to  that  extent.  And  again, 
“Why  do  we  have  marshals  at  all  if  they  cannot 
physically  lay  their  hands  on  persons  and  things  in  the 
performance  of  their  proper  duties?  What  functions  can 


38 


they  perform,  if  they  cannot  use  force?  In  executing 
the  processes  of  the  courts,  must  they  call  upon  the 
nearest  constable  for  protection?  Must  they  rely 
upon  him  to  use  the  requisite  compulsion,  and  to  keep 
the  peace  whilst  they  are  soliciting  and  entreating  the 
parties  and  bystanders  to  allow  the  law  to  take  its 
course?  This  is  the  necessary  consequence  of  the 
positions  that  are  assumed.  If  we  indulge  in  such  im¬ 
practicable  views  as  these,  and  keep  on  refining  and 
re-refining,  we  shall  drive  the  national  government  out 
of  the  United  States,  and  relegate  it  to  the  District  of 
Columbia,  or  perhaps  some  foreign  soil.  We  shall 
bring  it  back  to  a  condition  of  greater  helplessness 
than  that  of  the  old  confederation.”  100  U.  S., 
395-6. 

In  this  particular  ease  the  petitioner,  long  before 
he  reached  Lathrop,  endeavored  through  the  con¬ 
ductor  and  the  proprietor  of  the  eating-house  at  that 
place,  to  have  “ a  constable"  in  readiness,  on  the  arrival 
of  the  train,  to  keep  the  peace,  but  without  success. 
When  too  late  to  prevent  the  tragedy  the  constable 
appeared  and  arrested  the  petitioner,  for  perform¬ 
ing  the  duty  which  it  is  now  claimed  devolved 
exclusively  upon  himself,  or  some  other  peace  officer 
of  the  State. 

Had  the  United  States  in  this  instance  relied  upon 
another  government — the  State  of  California — to  keep 
the  peace  as  to  one  of  their  most  venerable  and  dis¬ 
tinguished  officers — one  of  the  Judges  of  their  highest 
court — in  relation  to  matters  concerning  the  perform¬ 
ance  of  his  official  duties,  they  would  have  leaned  upon 
a  broken  reed,  and  there  would  now  in  all  probability 
be  a  vacancy  on  the  bench  of  one  of  the  most  august 
judicial  tribunals  in  the  world,  and  the  deceased— the 
would-be  assassin — might,  perhaps,  be  a  tenant  of  the 
Stockton  jail,  to  be  disposed  of  by  another  govern- 


39 


ment.  The  case  affords  a  striking  illustration  of  the 
necessity  for  the  United  States  to  protect  their  own 
officers  while  in  the  discharge  of  their  duties,  and  by 
such  protection  protect  the  nation  itself. 

The  result  was,  that  instead  of  arresting  the  conspi¬ 
rator  in  the  contemplated  murder — the  wife  of  the  de¬ 
ceased,  armed  with  a  loaded  revolver  till  relieved  of  it 
by  a  citizen — threatening  death  to  Justice  Field,  call¬ 
ing  upon  the  bystanders  to  aid  her,  and  attempting  to 
enter  the  car,  with  the  avowed  purpose  of  compassing 
his  death,  the  officer  of  the  United  States  assigned  by 
his  government  to  the  special  duty  of  protecting  the  jus¬ 
tice’s  life  against  these  very  parties,  while  in  the  actual 
performance  of  the  duties  so  assigned  him,  was,  him¬ 
self,  arrested,  without  warrant,  and  disarmed  by  an 
inferior  officer  of  the  State,  and  interrupted  in  the  dis¬ 
charge  of  those  momentous  duties,  thereby  leaving  his 
charge  helpless,  and  without  the  protection  provided 
by  the  government  he  was  serving  at  a  time  when  such 
protection  seemed  most  needed. 

Had  Neagle  been  a  Deputy  Sheriff  of  San  Joaquin 
County  assigned  by  his  superior  to  this  very  duty  of 
protecting  the  life  of  Justice  Field,  under  the  State 
laws,  and  in  the  performance  of  his  duties  committed  the 
homicide  in  all  other  respects  under  precisely  the  same 
circumstances,  would  he  have  been  arrested  by  the  con¬ 
stable  of  Lathrop,  without  a  warrant,  and  disarmed 
with  such  inconsiderate  haste,  and  thereby  prevented 
from  further  performing  his  duty  to  protect  the  life  and 
person  of  Justice  Field,  leaving  him  to  pursue  the 
remainder  of  his  journey  without  protection?  Yet 
the  constable  was  informed  that  Neagle  was  acting  as  a 
Deputy  United  States  Marshal,  under  the  orders  of 
his  superiors,  for  the  protection  of  the  life  and  person 
of  a  Justice  of  the  Supreme  Court  of  the  United 
States. 


40 


We  do  not  -wish  to  be  regarded  as  now  calmly  and 
deliberately  looking  back  upon  the  scene,  and  sitting 
in  judgment  upon  the  action  of  the  constable  or  as 
passing  censure  upon  his  zeal.  He,  doubtless,  in  the 
emergency,  where  time  for  consideration  was  short,  and 
the  facts  not  fully  appreciated,  acted  according  to  the 
best  dictates  of  his  judgment  necessarily  hastily  formed. 
But  when  the  State  now  comes  in  after  an  arrest  upon  a 
warrant  issued  upon  such  flimsy  testimony  as  that  pre¬ 
sented,  and  deliberately  claims  the  exclusive  right  to 
sit  in  judgment  upon  the  acts  of  the  United  States 
Deputy  Marshal,  performed  not  upon  his  own  interpre¬ 
tation  of  the  law,  but  upon  that  of  the  Attorney- 
General  of  the  United  States,  who  may  be  presumed 
to  possess  some  knowledge  of  his  powers  and  duties,  it 
is  well  to  consider  the  circumstances  from  a  standpoint 
presenting  a  view  of  both  sides  of  the  question. 

In  matters  of  the  public  peace,  in  which  the  Na¬ 
tional  Government  is  concerned,  the  Marshals  and 
Deputy^  Marshals,  within  the  scope  of  their  authority, 
are  national  peace  officers,  with  all  the  statutory  and 
common  law  powers  appertaining  to  peace  officers.  Is 
not  the  national  public  peace  involved,  when  a  deadly 
assault  is  unexpectedly  made  upon  a  Judge  in  open 
v  Court,  in  which  the  Marshal,  and  his  deputies,  seeing 
the  assault,  are  both  authorized  and  bound  on  their 
own  motion,  without  any  previous  order  or  command, 
to  interpose,  and  use  sufficient  force  to  quell  the  dis¬ 
turbance,  and  subdue  the  parties  making  it?  Yet 
where  is  there  any  specific  provision  of  the  statute  im¬ 
posing  that  duty  upon  them  ?  The  Marshal  is  required 
to  attend  Court,  but  it  is  not  provided  what  he  shall 
do  in  Court.  To  what  end  shall  he  be  in  Court  if  not 
to  keep  order,  and  if  necessary,  to  protect  the  Judges 
from  violence,  by7  force,  or  any  practicable  means  ? 
But  there  is  no  statute  requiring  it  in  terms. 


41 


The  general  duties  of  marshals  are  provided  for  in 
Section  787,  which  reads  as  follows:  “  It  shall  be  the 
duty  of  the  marshal  of  each  district  to  attend  the 
District  and  Circuit  Courts  when  sitting  therein,  and 
execute  throughout  the  district,  all  lawful  precepts 
directed  to  him,  and  issued  under  the  authority 
of  the  United  States;  and  he  shall  have  power 
to  command  all  necessary  assistance  in  the  exe¬ 
cution  of  his  duty.”  There  is  no  more  authority 
specifically  conferred  upon  the  Marshal  by  this  section 
to  protect  the  Judge  from  assassination,  in  open  Court, 
without  a  specific  order  or  command,  than  there  is  to 
protect  him  out  of  Court,  when  on  the  way  from  one 
Court  to  another,  in  the  discharge  of  his  official  duties. 
And  the  assassination  in  Court,  as  well  as  out  of  it,  might 
well  be  accomplished  before  the  Judge  would  be  aware 
of  his  danger,  and  before  it  would  be  possible  to  give 
a  command  or  order  to  the  Marshal  for  his  protection. 
The  authority  exists  in  the  one  case,  as  in  the  other, 
from  the  nature  of  the  office,  and  the  powers  arising 
under  the  common  law,  recognized  and  in  use  in  the 
country,  and  in  the  nature  of  things,  inherent  in  the 
office.  The  very  idea  of  a  government  composed  of 
executive,  legislative  and  judicial  departments,  neces¬ 
sarily  comprehends  the  power  to  do  all  things  through  ^ 
its  appropriate  officers  and  agents,  within  the  scope  of 
its  general  governmental  purposes  and  powers  re¬ 
quisite  to  preserve  its  existence,  protect  it  and  its 
ministers  and  give  it  complete  efficiency  in  all  its 
parts.  It  necessarily  and  inherently  includes  power 
in  its  executive  department  to  enforce  the  laws,  keep 
the  national  peace  with  regard  to  its  officers  while  in 
the  line  of  their  duty,  and  protect  by  its  all-powerful 
arm  all  the  other  departments  and  the  officers  and  in¬ 
strumentalities  necessary  to  their  efficiency  while  en¬ 
gaged  in  the  discharge  of  their  duties. 


42 


In  language  attributed  to  Mr.  ex-Secretary  Bayard, 
used  with  reference  to  this  very  case,  which  we  quote, 
not  as  a  controlling  judicial  authority,  but  for  its 
intrinsic,  sound,  common  sense:  “The  robust 

and  essential  principle  must  be  recognized  and  pro¬ 
claimed,  that  the  inherent  powers  of  every  government 
which  is  sufficient  to  authorize  and  enforce  the  judg¬ 
ment  of  its  Courts,  are,  equally,  and  at  all  times,  and 
in  all  places,  sufficient  to  protect  the  individual  Judge 
who,  fearlessly  and  conscientiously  in  the  discharge  of 
his  duty,  pronounces  those  judgments.” 

Our  jurisprudence  is  derived  from  and  founded 
upon  that  of  England,  and  our  Judges  and  officers  are 
substantially  the  same.  They  have  corresponding 
duties  imposed  upon  them,  and  inherently  possess 
corresponding  executive  powers,  to  enable  them  to 
effectively  perform  their  duties.  From  the  foundation 
of  our  Government,  many  of  their  common  law  duties 
have  been  performed,  and  common  law  powers  exercised 
without  specific  or  statutory  direction,  and  without 
question;  and  the  common  law  principles  governing 
them,  except  so  far  as  inapplicable,  or  modified  by 
statute,  still  remain  in  force. 

The  observation  of  the  Supreme  Court  of  California, 
in  the  estate  of  Apple,  66  Cal.  434,  in  which  State  a 
Code  has  been  adopted  with  respect  to  the  common  law 
not  abrogated  or  modified  by  the  Code,  is  applicable 
here.  Said  the  Court:  “The  code  establishes  the 
law  of  this  state  respecting  the  subjects  to  which  it  re¬ 
lates;  but  this,  of  course,  does  not  mean  that  there  is 
no  law  with  respect  to  such  subjects  except  that  em¬ 
bodied  in  the  code.  When  the  code  speaks,  its  pro¬ 
visions  are  controlling,  and  they  are  to  be  liberally 
construed,  with  a  view  to  effect  its  objects  and  pro¬ 
mote  justice — the  rule  of  the  common  law  that  statutes 
in  derogation  thereof  are  to  be  strictly  construed  hav- 


43 


ing  been  abolished  here;  but  where  the  code  is  silent, 
the  common  law  governs.”  So  here,  wiiere  the  duties 
of  the  Marshal  are  not  limited,  or  specifically  defined, 
by  the  statute,  we  must  look  to  the  powers  and  duties 
of  Sheriffs  at  common  law  for  them  so  far  as  those 
duties  come  within  the  purposes  and  powers  of  the 
national  Government. 

There  are  many  acts  and  duties  daily  performed  by 
the  Marshals  and  by  other  officers  that  are  not  specif¬ 
ically  pointed  out  or  defined  by  the  statute.  The  Mar¬ 
shals  are  in  daily  attendance  upon  the  Judges,  and 
performing  official  duties  in  their  chambers.  Yet  no 
statute  specifically  points  out  those  duties  or  requires 
their  performance.  Indeed,  no  such  places  as  chambers 
for  the  Circuit  Judges  or  Circuit  Justices  are  men¬ 
tioned  at  all  in  the  statutes.  The  Judges’  chambers  do 
not  appear  to  have  any  ‘‘local  habitation.”  The  Jus¬ 
tices  of  the  Supreme  Court  at  Washington  have,  in 
fact,  no  chambers  otherwise  than  as  they  study  and  do 
their  work  out  of  Court,  at  a  room  in  their  own  resi¬ 
dences.  We  have  in  the  San  Francisco  courthouse  rooms 
that  we  call  chambers,  in  which  the  work  of  the  Judges 
out  of  Court  is  in  part,  but  not  wholly,  performed. 
I  apprehend  that  the  Marshal  would  as  clearly  be  au¬ 
thorized  to  protect  the  Judges  here  in  chambers  as  in 
the  courtroom.  All  business  done  out  of  Court  by 
the  Judge  is  called  chamber  business.  But  it  is  not 
necessary  to  be  done  in  what  is  usually  called  cham¬ 
bers.  Chamber  business  may  be  done,  and  often  is 
done,  on  the  street,  in  the  Judge’s  own  house,  at  the 
hotel  where  he  stops,  when  absent  from  home,  or  it 
may  be  done  in  transitu,  on  the  cars  in  going  from  one 
place  to  another  within  the  proper  jurisdiction  to  hold 
court.  Mr.  Justice  Field  could,  as  well,  and  as  author¬ 
itatively,  issue  a  temporary  injunction,  grant  a  writ  of 
habeas  corpus,  an  order  to  show  cause,  or  do  any  other 


44 


chamber  business  for  the  district  in  the  dining-room 
at  Lathrop,  or  in  the  cars,  as  at  his  chambers  in  San 
Francisco,  or  in  the  courtroom.  He  could  have  made 
a  writ  of  habeas  corpus  returnable  before  himself  on  the 
car,  and  lawfully  heard  and  decided  the  case  while  on 
his  passage  to  San  Francisco.  The  chambers  of  the 
Judge,  where  chambers  are  provided,  are  not  an  ele¬ 
ment  of  jurisdiction,  but  are  a  convenience  to  the 
Judge,  and  to  suitors— places,  where  the  Judge  at 
proper  times  can  be  readily  found,  and  the  business 
conveniently  transacted.  But  the  chambers  of  the 
Judge,  as  a  legal  entity,  is  something  of  a  myth.  For 
the  purposes  of  jurisdiction,  the  chambers  of  the  Judge 
are  wherever  he  happens  to  be  in  his  circuit,  or  dis¬ 
trict,  when  the  exigencies  of  the  case  call  for  the 
transaction  of  chamber  business,  and  a  Judge  is  as 
clearly  engaged  in  the  discharge  of  the  duties  of  his 
office,  when  going  from  one  place  of  holding  court  to 
another,  for  the  purpose  of  holding  court,  and  just  as 
much  entitled  to  protection  from  his  own  Government 
against  murderous  or  other  assaults,  from  desperate 
suitors,  on  account  of  his  judicial  action,  as  when  ac¬ 
tually  engaged  in  business  at  chambers,  or  in  holding 
court.  In  England,  whence  we  derive  our  jurispru¬ 
dence,  the  High  Sheriff  of  the  shire  was  the  keeper  of 
the  King’s  peace- that  is  to  say.  the  keeper  of  the 
peace  of  the  sovereignty  which  the  King  represents. 
So  here,  I  take  it,  under  the  authorities  cited,  the 
Marshal  is  the  keeper  of  the  peace  of  the  Government 
of  the  sovereignty  he  serves,  within  the  scope  of  the 
supreme  powers  of  that  Government.  In  England,  in 
early  days,  it  was  the  duty  in  every  shire  of  the  Sher¬ 
iffs  not  only  to  attend  the  courts,  but  to  attend  the 
Judges  through  their  circuits.  They  met  the  Judges 
at  the  border  of  the  shire,  and  attended  them  until 
they  left  it  at  the  border  of  another.  Dalton,  on  the 


45 


Office  and  Authority  of  Sheriffs,  chapter  98,  p.  369, 
published  in  1682.  See  also  40  All).  Law  Journal,  161. 
Such  is  also  understood  to  have  been  the  practice  in 
early  days  in  a  number  of  the  States.  From  the  ad¬ 
vancing  state  of  civilization  this  practice  has,  doubt¬ 
less,  generally  become  unnecessary  for  the  safety  of 
the  Judges,  and  it  has  fallen  into  desuetude.  But  it 
does  not  follow  that  the  power  to  thus  protect  them 
has  been  abolished  or  become  extinguished.  It  simply 
remains  latent  or  dormant,  ready  to  be  called  into  ac¬ 
tion  whenever  the  exigencies  of  the  case  or  times  re¬ 
quire  it.  And  how  could  there  possibly  be  a  more 
urgent  occasion  for  reviving  the  practice  and  calling  it 
into  action,  than  the  recent  journey  of  Justice  Field  to 
Los  Angeles  and  return  on  official  business  ? 

Upon  general,  immutable  principles,  the  power  must 
necessarily  be  inherent  in  the  executive  department  of 
any  government  worthy  the  name  of  government,  to  pro¬ 
tect  itself  in  all  matters  to  which  its  authority  extends, 
and  this  necessarily  involves  the  power  to  protect  all 
the  agencies  and  instrumentalities  necessary  to  accom¬ 
plish  the  objects  and  purposes  of  that  government.  In 
the  National  Government  of  the  United  States  the 
judiciary  constitutes  one  of  its  most  important  branches. 
Unlike  the  judiciary  of  other  nations  it  is  invested 
with  the  jurisdiction  to  pass,  finally  and  conclusively, 
upon  the  powers  of  the  legislative  and  executive  de¬ 
partments  of  the  Government,  and  to  confine  them 
within  their  constitutional  limits.  It  is,  therefore,  the 
balance  wheel  of  the  National  Government,  that  keeps 
it  running  regularly  and  smoothly  within  its  proper  do¬ 
main.  Impotent,  indeed,  must  be  the  executive  branch 
of  the  government,  if  it  is  not  empowered  to  protect 
the  lives  of  the  Judges  of  the  highest  branch  of  its 
judiciary,  from  assault  and  assassination,  on  account 
of  their  judicial  decisions,  by  desperate  disappointed 


40 


litigants,  while  passing  from  point  to  point  within 
their  territorial  jurisdiction  in  the  discharge  of  their 
high  functions  and  duties.  We  cannot  think  the  power 
can  be  wanting,  even  if  there  were  no  constitutional 
or  statutory  provision  governing  the  case.  It  seems 
impossible  that  the  National  Government  should  be  left 
to  the  mercy,  good  will,  or  complacency  of  the  State, 
to  afford  that  protection  to  its  Judges  that  the  United 
States,  if  worthy  to  be  called  a  nation,  are  bound  them¬ 
selves  to  furnish. 

As  a  further  example  of  laws,  not  ordained  by  specific 
statutory  enactments,  see  those  respecting  punish¬ 
ment  for  contempts.  For  forty  years  after  the  organ¬ 
ization  of  the  National  Government,  down  to  1831, 
there  was  no  Statute  which  specifically  defined 
contempts  of  court.  Ex  parte  Robinson,  19  Wal.,  510; 
ex  parte  Terry,  128  U.  S  ,  302-3;  ex  parte  Savin, 
131  U.  S.,  275.  But  the  courts,  nevertheless, 
exercised  the  power,  necessarily,  from  the  nature  of 
things  inherent  in  every  court,  to  protect  itself,  its 
dignity  and  its  officers,  by  the  punishment  of  many 
acts  as  contempts  of  its  authority.  The  first  specific 
Act  upon  the  subject  passed  by  Congress  was  not  an 
Act  enlarging  the  power  of  the  court,  but  it  was,  on 
the  contrary,  a  restriction  of  the  powers  already  exer¬ 
cised  within  certain  defiued  limits.  The  act  was 
passed  at  the  instance  of  Senator  Buchannan,  to  limit 
the  power  of  the  court  theretofore  exercised,  to  punish 
for  contempts,  as  a  sequel  to  the  impeachment  of  a 
United  States  Judge  for  the  District  of  Missouri. 
The  Act  was  passed  March  2,  1831,  and  is  en¬ 
titled,  “An  Act  declaratory  of  the  law  concerning 
contempts  of  Court.”  4  U.  S.  Stat.  at  Large,  487. 
The  first  section  does  not  grant  the  power  to  punish 
for  contempts,  but  expressly  recognizes  the  existing 
power,  and,  in  express  terms  thereafter,  limits  the 


47 


power  to  certain  enumerated  cases.  In  order  that 
those  who  were  before  subject  to  punishment  for  con¬ 
tempt  should  not  escape  the  penalties  due  their  acts, 
section  2  of  the  statute  makes  certain  acts,  before 
punishable  as  contempts,  offenses  against  the  laws  of 
the  United  States,  punishable  by  the  less  summary 
and  more  deliberate  proceeding  on  indictment  and 
trial  by  a  jury.  Many  of  the  acts  under  that  Act, 
recognized  as  punishable  as  contempts,  as  being 
necessary  to  the  prompt  and  summary  vindication  of 
the  authority  of  the  court,  are  also  indictable  offenses 
under  other  statutes. 

This  Statute  of  1831  has  been  carried  into  the  Re¬ 
vised  Statutes,  Section  1  of  that  Act  having  been  re¬ 
enacted  in  Section  725  of  the  Revised  Statutes,  giving 
it  a  granting,  as  well  as  a  restricting,  form,  but  in  no 
sense  changing  its  purpose  or  meaning.  And  Section 
2  is  now  found  in  Section  5399  of  the  Revised  Statutes, 
as  a  part  of  the  criminal  code  of  the  nation. 

Did  anybody  ever  doubt,  or  does  anybody  now 
doubt,  that  the  power  of  the  United  States  Courts  to 
punish  contempts,  from  the  organization  of  the  gov¬ 
ernment  down  to  1831,  was  just  as  ample,  and  that  it 
was  just  as  much  a  part  of  the  law  of  the  United 
States,  inherently,  vested  in  the  courts,  as  it  was  after 
the  passage  of  the  Act  of  1831,  or  as  it  is  now  under 
the  same  provisions  carried  into  the  Revised  Statutes  ? 

Yet,  there  was  no  specific  provision  of  the  statutes 
defining  contempts.  It  was  a  power,  however 
necessarily,  inherent  in  the  courts.  It  is  in¬ 
volved  in  the  very  idea  of  a  court,  having  power  to 
administer  the  laws  of  the  land.  It  would  be  impos¬ 
sible  for  courts  to  perform  their  functions  and  admin¬ 
ister  the  laws  without  it.  And  as  so  inherent,  the 
power  to  punish  various  acts  not  mentioned  for 
contempt  was  as  much  a  part  of  the  law  of 


4S 


the  United  States  as  if  ordained  Ivy  a  spe¬ 
cific  provision  of  the  Statute  of  the  United  States, 
and  the  authority  of  the  Marshal  to  protect  the  Judges 
is  a  cognate  power,  also,  necessarily,  inherent  in  the 
office  he  holds.  Thus  there  is  much  law  of  the  United 
States  not  now  found  in  terms  in  the  statutes,  but  as 
valid  and  binding  upon  the  people  and  upon  the  States 
as  if  it  were  specifically  and  definitely  therein  ex¬ 
pressed.  See  U.  S.  vs.  Hudson,  7  Cr.,  32-4.  Matter  of 
Meador,  1  Abb.,  324.  In  re  Buckley,  69  Cal.,  18. 

But  we  are  not  without  constitutional  and  statutory 
provisions,  broad  enough  and  specific  enough,  as  we 
think,  to  cover  the  case.  The  National  Constitution, 
providing  a  government  for  sixty-five  millions  of 
people,  covers  but  a  very  few  pages,  but  it  seems  to  be 
amply  sufficient  for  the  purposes  intended.  In  jrre- 
scribing  the  duties  of  the  President,  in  the  terse  but 
comprehensive  language  of  section  3,  article  II,  it 
provides  that  “he  shall  take  care  that  the  laws  be 
faithfully  executed.”  This  makes  him  the  executive 
head  of  the  nation,  and  gives  him  all  the  authority 
necessary  to  accomplish  the  purposes  intended — all 
the  authority  necessarily  inherent  in  the  office,  not 
otherwise  limited.  Congress,  in  pursuance  of  powers 
vested  in  it,  has  provided  for  seven  departments,  as 
subordinate  to  the  President,  to  aid  him  in  perform¬ 
ing  the  executive  functions  conferred  upon  him.  Sec¬ 
tion  346,  R.  S.,  provides  that,  “one  of  the  executive 
departments  shall  be  known  as  the  Department 
of  Justice,”  and  that  there  shall  be  “  an  Attor¬ 
ney-General,  who  shall  be  the  head  thereof.” 
He  has  general  supervision  of  the  executive  branch 
of  the  National  Judiciary,  and  section  362  provides  as 
a  portion  of  his  powers  and  duties,  that  “the  Attorney- 
General  shall  exercise  general  superintendence  and 
direction  over  the  attorneys  and  marshals  of  all  the 


49 


districts  of  the  United  States  and  Territories  as  to 
tiie  manner  of  discharging  tlieir  respective  duties;  and 
the  several  district  attorneys  and  marshals  are 
required  to  report  to  the  Attorney-General  an  account 
of  their  official  proceedings,  and  of  the  state  and 
condition  of  their  respective  offices,  in  such  time  and 
manner  as  the  Attorney-General  may  direct.”  Sec¬ 
tion  788,  R.  S.,  provides  that  “The  marshals  and  their 
deputies  shall  have,  in  each  State,  the  same  powers  in 
executing  the  laws  of  the  United  States,  as  the  sher¬ 
iffs  and  their  deputies  in  such  State  may  have,  by  law, 
in  executing  the  laws  thereof.”  By  section  817  of  the 
Penal  Code  of  this  State,  the  Sheriff  is  a  “peace  officer.” 
By  section  4176,  Pol.  Code,  he  is  “to  preserve  the 
peace”  and  “prevent  and  suppress  breaches  of  the 
peace.”  The  Marshal  is,  therefore,  in  accordance  with 
the  decision  of  the  Supreme  Court  already  referred  to, 
and  under  the  provisions  of  the  statute  above  cited, 
“a  peace  officer,”  so  far  as  keeping  the  peace  in  any 
matter  wherein  the  national  powers  of  the  United 
States  are  concerned,  and  as  to  such  matters  he  has  all 
the  powers  of  the  sheriff,  as  a  peace  officer  under  the 
laws  of  the  State.  He  is,  in  such  matters,  “to  pre¬ 
serve  the  peace”  and  “prevent  and  suppress  breaches 
of  the  peace.”  An  assault  upon  or  an  assassination  of 
a  judge  of  a  United  States  Court  while  engaged  in 
any  matter  pertaining  to  his  official  duties,  on  account 
or  by  reason  of  his  judicial  decisions,  or  action  in 
performing  his  official  duties,  is  a  breach  of  the 
peace,  affecting  the  authority  and  interests  of  the 
United  States,  and  within  the  jurisdiction  and  power 
of  the  Marshal  or  his  deputies  to  prevent  as  a  peace 
officer  of  the  national  government.  Such  an  assault  is 
not  merely  an  assault  upon  the  person  of  the 
judge,  as  a  man.  It  is  an  assault  upon  the  na¬ 
tional  judiciary,  which  he  represents,  and  through 


50 


it  an  assault  upon  the  authority  of  the  nation  it¬ 
self.  It  is,  necessarily,  a  breach  of  the  national 
peace.  As  a  national  peace  officer,  under  the  con¬ 
ditions  indicated,  it  is  the  duty  of  the  Marshal  and  his 
deputies  to  prevent  a  breach  of  the  national  peace  by 
an  assault  upon  the  authority  of  the  United  States,  in 
the  person  of  a  judge  of  its  highest  court,  while  in  the 
discharge  of  his  duty.  If  this  be  not  so,  in  the 
language  ol  the  Supreme  Court  before  cited,  “Why  do 
we  have  Marshals  at  all  ?”  What  useful  functions  can 
they  perforin  in  the  economy  of  the  national  govern¬ 
ment  ? 

The  Constitution  of  the  United  States  provides  for 
a  Supreme  Court,  with  jurisdiction  more  extensive  in 
some  particulars  than  that  conferred  on  any  other 
national  judicial  tribunal.  If  the  Executive  Depart¬ 
ment  of  the  government  cannot  protect  one  of  these 
Judges  while  in  the  discharge  of  his  duty,  from  as¬ 
sassination,  by  dissatisfied  suitors,  on  account  of  his 
judicial  action,  then  it  cannot  protect  airy  of  them,  and 
all  the  members  of  the  Court  may  be  killed,  and 
the  Court  itself  exterminated,  and  the  laws 
of  the  nation  b}r  reason  thereof,  remain  unad- 
ministered  and  unexecuted.  The  power  and  duty  im¬ 
posed  on  the  President  to  ‘  ‘  take  care  that  the  laws  are 
faithfully  executed,”  necessarily  carries  with  it.  all 
power  and  authority  necessary  to  accomplish  the  object 
sought  to  be  attained,  and,  certainly,  the  power  and 
duty  to  protect  from  the  deadly  assaults  of  desperate 
suitors,  the  lives  of  the  Judges  of  the  highest  Court 
in  the  nation,  while  engaged  in  the  lawful  discharge 
of  their  duties. 

As  we  have  before  seen,  neither  Constitution  nor 
statutes  can,  or  do,  anticipate  and  point  out,  specifi¬ 
cally,  every  possible  right  or  duty  to  be  covered  and 
secured.  They  must,  necessarily,  be  general.  In  the 


51 


passage  already  cited  from  Tennessee  vs.  Davis,  the  Su¬ 
preme  Court,  in  speaking  of  certain  officers,  says:  “It 
has  never  been  doubted,  that  all  who  are  employed  in 
them  are  protected  while  in  the  line  of  their  duty;  and 
yet  this  protection  is  not  expressed  in  any  act  of  Con¬ 
gress.  It  is  incidental  to,  and  is  implied  in,  the  several 
acts  by  which  those  institutions  are  created;  and  is  se¬ 
cured  to  the  individuals  employed  in  them  by  the  judi¬ 
cial  power  alone;  that  is,  the  judicial  power  is  the  in¬ 
strument  employed  by  the  government  in  administering 
this  security.”  (100  U  S.,  265).  And  in  United  States 
vs.  Macdaniel,  7  Pet.,  11,  similar  views  were  expressed. 
Said  the  Court:  “  A  practical  knowledge  of  the  action 
of  any  oue  of  the  great  departments  of  the  government 
must  convince  every  person  that  the  head  of  a  depart¬ 
ment,  in  the  distribution  of  its  duties  and  respon¬ 
sibilities,  is  often  compelled  to  exercise  his  discretion. 
He  is  limited  in  the  exercise  of  his  powers  by  law;  but 
it  does  not  follow  that  he  must  show  a  statutory  provis¬ 
ion  for  every  thing  he  does.  No  government  could  be  ad¬ 
ministered  on  such  principles.  *  *  *  lliere  are 

numberless  things  which  must  be  done,  that  can  neither  be 
anti  ipated  nor  defined,  and  which  are  essential  to  the 
proper  action  of  the  government .”  These  observations 
are  especially,  and  forcibly  applicable  to  the  terse  but 
very  comprehensive  provisions  of  the  Constitution  and 
of  the  several  statutes  cited,  as  to  the  powers  and  duties 
of  the  President,  the  Attorney-General  and  Marshals. 

The  act  of  the  Attorney  General  in  directing  the 
United  States  Marshal  to  protect  the  life  of  Mr.  Jus¬ 
tice  Field  against  the  assaults  of  the  deceased  and  his 
wife,  is  in  legal  contemplation  the  act  of  the  President. 
The  President  speaks  and  acts  through  the  heads  of 
the  several  executive  departments  in  relation  to  subjects 
which  appertain  to  their  respective  duties.  They  are 
but  the  subordinates  of  the  President,  wielding  his 


power.  ( Wilcox  vs.  Jackson,  13  Pet.,  513;  United 
States  vs.  Cutter,  2  Curtis,  617).  In  the  former  case, 
relating  to  a  reservation  of  land  by  the  Secretary  of 
War,  the  court  said,  “Now  although  the  immediate 
agent  in  requiring  this  reservation  was  the  Secretary 
of  War,  yet  we  feel  justified  in  presuming  that  it  was 
done  by  the  approbation  and  direction  of  the  President. 
The  President  speaks  and  acts  through  the  heads  of 
the  several  departments  in  relation  to  subjects  which 
appertain  to  their  respective  duties.”  See  also  7 
Attorney  General’s  Opinions,  480-1,  id.  433-479.  Con¬ 
fiscation  cases,  20  Wal.,  108-9,  United  States  \ s.  Elia-  1 
son,  16  Pet.,  291. 

By  Section  788  K.  S.,  and  the  several  provisions  of 
the  Statutes  of  California  herein  cited,  the  United  States 
Marshal  is  made  a  peace  officer  and  as  such  he  is  au¬ 
thorized  to  preserve  the  peace,  so  far  as  a  breach  of 
the  peace  affects  the  authority  of  the  United  States 
and  obstructs  the  operations  of  the  government  and  its 
various  departments.  The  courts  must,  from  the  nature 
of  things,  be  enabled  fully  to  perform  all  their  functions 
imposed  upon  them  by  the  Constitution  and  laws  with¬ 
out  hindrance  or  obstruction,  and  the}*  must  have  the 
inherent  power  to  protect  themselves  b}q  and  through 
their  executive  officers,  under  the  direction  and  super¬ 
vision  of  the  Attorney- General  and  the  President, 
against  obstruction  and  hindrance  in  the  performance 
of  their  judicial  duties.  An  assault  upon  a  Judge  in 
Court,  or  a  Judge  out  of  Court,  while  in  the  perform¬ 
ance  of  his  duty,  induced  by  his  judicial  action,  and 
intended  or  calculated  to  obstruct  him  in,  or  deter  him 
from,  a  free  and  full  discharge  of  liis  duty,  is  a  breach 
of  the  national  peace  affecting  the  sovereignty  of  the 
nation,  and  tending  to  obstruct  and  impair  the  opera¬ 
tions  and  efficiency  of  one  of  the  most  important 
departments  of  the  government.  As  such,  it  is  the 


53 


duty  of  the  United  States  Marshal,  under  the  police 
powers  of  the  nation  so  conferred  upon  him,  bv  the 
statutes  cited,  and  as  a  national  peace  officer,  to  pre¬ 
vent  such  breach  of  the  peace.  Under  the  State  laws 
deputy  sheriffs,  when  occasion  requires,  constables  and 
police  officers  of  cities  are  assigned  to  certain  districts 
to  watch  over  the  safety  of  the  citizens  and  to  guard  and 
protect  their  persons  and  property  from  assault,  de¬ 
struction  or  injury,  hi  short  to  prevent  the  commission  of 
crimes,  etc.  These  officers  in  cities  are  found  every¬ 
where,  night  and  day,  guarding  the  citizen  and  his 
property  from  injury.  So  the  Attorney-General,  under 
the  provisions  of  the  statute  cited,  and  the  President 
under  the  provisions  of  the  Constitution,  requiring 
him  to  see  that  the  laws  are  faithfully  executed,  are 
authorized  and  empowered  to  direct  the  assignment  by 
the  marshal,  of  any  deputy  to  perform  any  special 
national  police  duty  within  his  jurisdiction,  arising  out 
of  the  statutes,  whether  by  express  provision  or  neces¬ 
sary  implication,  and  under  any  power,  necessarily  in¬ 
herent  in  the  President  and  government,  in  order  to 
give  full  effect  and  efficiency  to  the  government,  or  any 
of  its  departments.  It  has  never,  so  far  as  we  are  ad¬ 
vised,  been  doubted  that  a  Marshal  or  Deputy  Mar¬ 
shal  is  authorized  to  protect  a  Judge,  and  preserve  order 
in  open  court,  even  by  the  use  of  force,  without  any 
special  order  or  command,  as  a  part  of  the  duties  nec¬ 
essarily  inherent  in  his  office;  yet,  as  we  have  already 
seen,  there  is  no  more  specific  statutory  authority  for 
so  preserving  order,  and  protecting  the  Judge  iu  court, 
than  for  performing  the  same  duty,  under  proper  con¬ 
ditions,  for  a  Judge  engaged  in  performing  his  duties, 
of  whatever  nature  out  of  court. 

It  is  argued  by  one  of  the  counsel  on  behalf  of  the 
State  that  these  matters  pertain  exclusively  to  the 
peace  of  the  State,  and  that  the  State  has  not  only 


54 


power  to  preserve  the  public  peace,  but  that  it  is 
amply  capable  of  performing  this  service,  that  it  is  its 
duty  to  do  it;  that  the  threats  of  the  deceased  were 
matters  of  public  notoriety;  and  that  bv  calling  the 
powers  of  the  State  into  action,  Justice  Field’s  life 
might  have  been  protected  by  the  State,  and  there 
would  have  been  no  necessity  whatever  for  what  is 
called  on  the  part  of  the  State,  the  illegal  action  of  the 
Uiuted  States  Marshal.  It  may  be  conceded,  and  it  is 
undoubtedly  true,  that  it  was  an  imperative  duty  of  the 
State  to  preserve  the  public  peace,  and  to  amply  pro¬ 
tect  the  life  of  Mr.  Justice  Field,  but  it  did  not  do  it. 
Where  would  Mr.  Justice  Field  have  been  to-day,  had 
he  relied  solely  upon  the  State  to  perform  her  conceded 
imperative  duty? 

Not  having  performed  that  obligation  while  on  his 
journey  in  discharge  of  his  judicial  duties,  does  a 
complaint  now  come  with  a  good  grace  from  the  State 
against  the  United  States  for  performing  it  for  her,  as 
well  as  for  the  National  Government,  by  protecting 
one  of  their  most  distinguished  judicial  functionaries 
through  one  of  their  own  officers;  in  the  only  manner 
in  which  it  could  have  been  effectively  performed? 

In  the  present  case,  and  on  this  official  journey, 
there  was  a  necessity  for  the  kind  of  protection  afforded 
Mr.  Justice  Field,  for  no  other  kind  would  have  been 
adequate.  The  occasion  required  a  preventive 
remedy. 

The  use  of  the  State  police  force  would  have  been 
impracticable,  as  the  powers  oi  the  Sheriff  would  have 
ended  at  the  borders  of  his  county,  and  of  other  town¬ 
ship  and  city  peace  officers,  at  the  boundaries  of  their 
respective  townships  and  cities.  Only  a  United  States 
Marshal,  or  his  deputy,  could  exercise  these  official 
functions  throughout  the  United  States  judicial  dis¬ 
trict,  and  as  we  have  seen,  the  powers  exercised  concern 


matters  affecting  the  peace  of  the  National  Govern¬ 
ment,  and  if  the  National  Government  has  no  author¬ 
ity  to  act  in  the  premises  it  certainly  ought  to  have 
such  power. 

The  only  remedy  suggested  on  the  part  of  the  State 
was  to  arrest  the  deceased  and  hold  him  to  bail  to  keep 
the  peace  under  Section  706  of  the  Penal  Code,  the 
highest  limit  of  the  amount  of  bail  being  $5000.  But 
although  the  threats  are  conceded  to  have  been  pub¬ 
licly  known  in  the  State,  no  State  officer  took  any 
means  to  provide  this  flimsy  safeguard. 

Perhaps  counsel  intended  to  intimate  that  it  was  not 
the  duty  of  the  State,  but  of  Mr.  .Justice  Field  him¬ 
self  to  set  in  motion  proceedings  under  the  law  fur¬ 
nished  by  the  State,  to  put  the  decedent  under  bonds 
to  keep  the  peace.  Has  it  come  to  this,  then,  that  a 
.Justice  of  the  Supreme  Court  of  the  United  States, 
when  in  obedience  to  the  behests  of  the  law,  he  comes 
to  California  to  perform  his  judicial  duties, 
must  submit  to  the  humiliation  of  immediately  upon  his 
arrival,  stealing  away  to  some  justice  of  the  peace  and 
instituting  proceedings  to  bind  over  to  keep  the  peace 
vindictive  and  dangerous  litigants  who  have  threat¬ 
ened  his  life?  But  what  security  to  Mr.  Justice  Field 
would  a  bond  of  $5000  afford  against  resolute,  violent 
and  desperate  parties,  for  whom  the  penalties  for  mur¬ 
der  have  no  deterring  power?  The  United  States 
Marshal,  the  United  States  Attorney  for  the  District 
of  California,  the  Attorney-General  of  the  United 
States  at  Washington,  and  the  mass  of  the  people  of 
California  thought  that  the  exigencies  of  the  occasion 
required  something  more,  and  the  result  fully  justified 
their  view  of  the  matter. 

Although  no  adequate  means  of  protection  were 
afforded  bv  the  State  on  his  late  official  journey,  and 
Mr.  Justice  Field  would,  in  all  probability,  not  now 


56 


be  among  the  living  had  not  the  petitioner,  bj  the 
wise  forethought  of  the  Attorney-General,  been  de¬ 
tailed  to  protect  his  life,  yet  the  fact  of  the  failure  of 
the  State  to  perform  its  duty,  does  not  afford  anv 
reason  for  taking  the  petitioner  out  of  the  custody  of  the 
State,  unless,  in  committing  the  homicide,  he  was  en¬ 
gaged  in  the  performance  of  ‘  ‘  an  act  done  *  *  * 

in  pursuance  of  a  law  of  the  United  States,”  and  the 
killing  was  justifiable.  The  failure  to  perform  its 
duty  would  not,  alone,  oust  the  jurisdiction  of 
the  State,  if  it  be  exclusive.  But  since  the 
possible  remedy  mentioned  under  the  State  law 
was  alluded  to  by  counsel  as  ample,  we  refer 
to  it  as  illustrating  the  necessity  for  a  speedy 
amendment  of  the  laws  of  the  United  States,  if  they 
are  now  so  defective  as  to  afford  no  protection  to  the 
United  States  Judges  in  the  performance  of  their  high 
functions. 

It  is  apparent  to  us,  if  he  is  not  now  so  pro¬ 
tected,  that  the  distinguished  Justice  allotted  to  the 
Ninth  Circuit,  and  also  his  associates,  should  have 
thrown  over  them  the  protecting  a?gis  of  the  laws  of 
that  government  which  he  has  so  long,  faithfully  and 
efficiently  served. 

After  mature  consideration,  we  have  reached  the 
conclusion  that  the  homicide  in  question  was  com¬ 
mitted  by  petitioner  while  acting  in  the  discharge  of  a 
duty  imposed  upon  him  by  the  Constitution  and  laws 
of  the  United  States,  within  the  meaning  of  the  pro¬ 
visions  of  Section  753  of  the  Revised  Statutes. 

It  only  remains  to  inquire,  secondly,  was  the  homi¬ 
cide  necessary,  or  was  it  reasonably  apparent  to  the 
mind  of  the  petitioner,  at  the  time  and  under  the  cir¬ 
cumstances  then  existing,  that  the  killing  was  neces¬ 
sary  in  order  to  a  full  and  complete  discharge  of  such 
duty? 


57 


The  answer  to  this  proposition  is  really  included  in 
the  answer  to  tire  last,  but  we  desire  to  make  some  ob¬ 
servations  bearing  especially  upon  it. 

The  Attorney-General  and  counsel  for  the  State 
declined  to  discuss  the  question  as  to  whether  the 
homicide  was  justifiable,  because,  in  their  view,  this 
is  a  question  solely  for  the  State  Court,  the  case,  as 
claimed  by  them,  not  being  within  the  provisions  of 
section  753  of  the  Revised  Statutes,  and,  therefore, 
not  within  the  jurisdiction  of  this  Court.  Holding, 
as  we  do,  that  the  case  falls  within  those  provisions, 
so  far  as  the  petitioner  was  authorized  to  act,  by  the 
Constitution  and  laws  of  the  United  States,  it  becomes 
necessary  to  determine  whether  the  homicide  was 
justifiable.  For,  if  it  was  malicious,  wanton  or  reck¬ 
less,  without  any  reasonable  apparent  necessity  in 
order  to  fully  and  properly  perform  his  duty  of  pro¬ 
tecting  Justice  Field,  then  it  was  an  act  performed 
beyond  and  outside  his  duty,  and  he  is  amenable  to 
the  State  Courts. 

The  facts  set  forth  in  the  petition,  and  in  the  traverse 
to  the  return  of  the  Sheriff,  are  fully  and  satisfactorily 
proved  by  the  testimony,  and  whether  we  determine 
the  case  upon  demurrer  to  the  traverse,  or  upon  the 
whole  case,  as  presented  in  the  record  and  evidence, 
the  result  must  be  the  same. 

Were  the  question  of  justification  to  be  determined 
by  the  laws  of  the  State  of  California,  or  in  the  State 
Court,  there  could  be  no  ground  for  doubt.  Says  the 
Penal  Code:  “Homicide  is  also  justifiable  when  com¬ 
mitted  by  any  person  when  resisting  any  attempt  to 
murder  any  person,  *  *  *  or  to  do  some  great 

bodily  injury  upon  any  person.’'  (Sec.  197,  Penal  Code.) 
But  we  shall  consider  the  question  without  reference 
to  the  statute  of  California. 


58 


It  is  unnecessary  to  repeat  the  facts  in  full.  When 
the  deceased  left  his  seat,  some  thirty  feet  distaut, 
walked  stealthily  down  the  passage  in  the  rear  of  Jus¬ 
tice  Field  and  dealt  the  unsuspecting  jurist  two  pre¬ 
liminary  blows,  doubtless  by  way  of  reminding  him 
that  the.  time  for  vengeance  had  at  last  come,  Justice 
Field  was  already  at  the  traditional  “wall”  of  the  law. 
He  was  sitting  quietl}7  at  a  table,  back  to  the  assailant, 
eating  his  breakfast,  the  side  opposite  being  occupied 
by  other  passengers,  some  of  whom  were  women, 
similarly  engaged.  When,  in  a  dazed  condition,  he 
awoke  to  the  reality  of  the  situation  and  saw 
the  stalwart  form  of  the  deceased  with  arm  drawn 
back  for  a  final  mortal  blow,  there  was  no  time  to  get 
under  or  over  the  table,  had  the  law.  under  any 
circumstances,  required  such  an  act  for  his 
justification.  Neagle  could  not  seek  a  “wall”  to  justify 
his  acts  without  abandoning  his  charge  to  certain 
death.  When,  therefore,  he  sprang  to  his  feet  and 
cried,  “Stop  !  I  am  an  officer,’’  and  saw  the  powerful 
arm  of  the  deceased  drawn  back  for  the  final  deadly 
stroke  instantly  change  its  direction  to  his  left  breast, 
apparently  seeking  his  favorite  weapon,  the  knife;  and 
at  the  same  time  heard  the  half-suppressed  disappointed 
growl  of  recognition  of  the  man  who,  with  the  aid  of 
half  a  dozen  others,  had  finally  succeeded  in  disarming 
him  of  his  knife  at  the  courtroom  a  year  before,  the 
supreme  moment  had  come,  or,  at  least,  with  abundant 
reason,  he  thought  so,  and  fired  the  fatal  shot.  The 
testimony  all  concurs  in  showing  this  to  be  the  state  of 
facts,  aud  the  almost  universal  consensus  of  public 
opinion  of  the  United  States  seems  to  justify  the  act. 
On  that  occasion,  a  second,  or  two  seconds,  signified, 
at  least,  two  valuable  lives,  and  a  reasonable  degree  of 
prudence  would  justify  a  shot  one  or  two  seconds  too 
soon,  rather  than  a  fraction  of  a  second  too  late.  Upon 


our  minds  the  evidence  leaves  no  doubt  whatever  that 
the  homicide  was  fully  justified  by  the  circumstances. 

We  have  seen  in  an  eastern  law  journal,  but  with  its 
disapproval,  some  adverse  criticism  upon  the  action 
of  the  petitioner,  attributed  to  a  quarter  ordinarily 
entitled  to  great  consideration  and  respect.  But  it  is 
not  for  scholarly  gentlemen  of  humane  and  peaceful  in¬ 
stincts — gentlemen,  who,  in  all  probability,  never  in 
their  lives,  saw  a  desperate  man  of  stalwart  frame  and 
great  strength  in  murderous  action — it  is  not  for  them 
sitting  securely  in  their  libraries,  3000  miles  away, 
looking  backward  over  the  scene,  to  determine  the  ex¬ 
act  point  of  time  when  a  man  in  IS! eagle’s  situation 
should  fire  at  his  assailant,  in  order  to  be  justified  by 
the  law.  It  is  not  for  them  to  say  that  the  proper  time 
had  not  yet  come.  To  such,  in  all  probability,  the 
proper  time  would  never  come.  Neagle  on  the  scene 
of  action,  facing  the  party  making  a  murderous  assault, 
knowing  by  personal  experience  his  physical  powers, 
and  his  desperate  character;  and  by  general  reputation, 
his  life-long  habit  of  carrying  arms,  his  readiness  to 
use  them,  and  his  angry,  murderous  threats,  and  see¬ 
ing  his  demoniac  looks,  his  stealthy  assault  upon 
Justice  Field  from  behind,  and,  remembering  the  sa¬ 
cred  trust  committed  to  his  charge — Neagle,  in  these 
trying  circumstances,  was  the  party  to  determine  when 
the  supreme  moment  for  action  had  come,  and  if  he, 
honestly,  acted  with  reasonable  judgment  and  discre¬ 
tion,  the  law  justifies  him,  even  if  he  erred.  But  who 
will  have  the  courage  to  stand  up  in  the  presence  of 
the  facts  developed  by  the  testimony  in  this  case,  and 
say  that  he  fired  the  smallest  fraction  of  a  second  too 
soon  ? 

In  our  judgment  he  acted,  under  the  trying  circum¬ 
stances  surrounding  him,  in  good  faith  and  with  con¬ 
summate  courage,  judgment  and  discretion.  The 


60 


homicide  was,  in  our  opinion,  clearly  justifiable  in 
law,  and  in  the  forum  of  sound,  practical  common 
sense — commendable.  This  being  so,  and  the  act  hav¬ 
ing  been  ‘  ‘  done  *  *  *  in  pursuance  of  a  law  of 

the  United  States,”  as  we  have  already  seen,  it  cannot 
be  an  offense  against,  and  lie  is  not  amenable  to,  the 
laws  of  the  State. 

Let  the  petitioner  be  discharged. 

Sawyer,  Circuit  Judge. 

Sabin,  District  Judge. 

September  16th,  1889. 


